SC/ST - relaxing standards in departmental competitive examinations and in departmental confirmation examinations. - Constitutional validity of Art. 16(4) of Indian Constitution - Validity of Office Memorandum being No. 36012/23/96-Estt.(Res) dated 22.7.1997 with drawing benefits conferred on ST/SC employees in departmental and promotional examinations against the to earlier O.M. and against to the provsio of Art. 16(4) - Apex court held that to undo the judgment in Indra Sawhney, Art.16(4) constitutional amendment was taken place and the judgement in S. Vinod Kumar is per incuriam as it has not dealt with Art.16(4) and is based on Indra Sawhney judgment and further held that Kuldeep Singh is concerned, we find that the matter was decided by this Court having regard to the constitutional provision contained in Article 16(4A). The view taken by this Court in Kuldeep Singh is in accord with constitutional scheme articulated in Article 16(4A). and further held that It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excursiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely -The conclusions recorded by the Constitution Bench in M. Nagaraj are also relevant and Subject to the above, we uphold the constitutional validity of theConstitution(Seventy-Seventh (Amendment) Act;1995: the Constitution (Eighty-first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act, 2000 andthe Constitution (Eighty-fifth Amendment) Act, 2001. and further held that We are in respectful agreement with the decision in Kuldeep Singh and approve the same. Ordinarily, we would have sent the matter to the Regular Bench for disposal of the matter but having regard to the nature of controversy and the fact that the Central Administrative Tribunal, Delhi (for short “the Tribunal”) has followed S. Vinod Kumar1 which is not a good law and resultantly 1997 O.M. is also illegal, in our view, the agony of the appellants need not be prolonged as they are entitled to the reliefs. Consequently, civil appeals are allowed.= CIVIL APPEAL NOs. 6046-6047 OF 2004 | ROHTAS BHANKHAR & OTHERS |...|APPELLANT(s) | | Versus | | UNION OF INDIA AND ANOTHER |.. |RESPONDENT(s) = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41774

SC/ST - relaxing standards in departmental  competitive  examinations  and  in  departmental  confirmation examinations. - Constitutional validity of Art. 16(4) of Indian Constitution - Validity of Office Memorandum being No. 36012/23/96-Estt.(Res)  dated  22.7.1997 with drawing benefits conferred on ST/SC employees in departmental and promotional examinations against the to earlier O.M. and against to the provsio of Art. 16(4) - Apex court held that to undo the judgment in Indra Sawhney, Art.16(4)  constitutional amendment was taken place and the judgement in S.  Vinod Kumar is per incuriam as it has not dealt with Art.16(4)  and is based on Indra Sawhney judgment and further held that  Kuldeep  Singh is concerned, we find that the matter was decided by this Court  having  regard to the  constitutional provision contained in  Article   16(4A).   The  view
taken by this Court in Kuldeep Singh  is  in  accord  with   constitutional scheme articulated in Article 16(4A). and further held that It is made clear that even if the State has compelling reasons,  as  stated above, the State will have to see that its reservation  provision  does  not
lead to  excursiveness  so  as  to  breach  the  ceiling  limit  of  50%  or obliterate the creamy layer or extend the reservation indefinitely -The conclusions recorded by  the  Constitution   Bench   in   M. Nagaraj are  also relevant  and Subject  to  the above, we uphold the constitutional validity  of  theConstitution(Seventy-Seventh (Amendment) Act;1995: the Constitution (Eighty-first Amendment) Act, 2000; the Constitution (Eighty-second Amendment)  Act, 2000 andthe Constitution (Eighty-fifth Amendment) Act, 2001. and further held that  We are in respectful agreement  with  the  decision  in  Kuldeep Singh and approve the same.  Ordinarily, we would have sent  the  matter  to the Regular Bench for disposal of the  matter   but  having  regard  to  the nature  of  controversy  and  the  fact  that  the   Central  Administrative Tribunal, Delhi (for short “the Tribunal”) has  followed   S.  Vinod  Kumar1 which is not a good law and resultantly 1997 O.M. is also  illegal,  in  our view, the agony of the  appellants  need  not  be  prolonged  as   they  are entitled to the reliefs. Consequently, civil appeals are allowed.=

Whether the Office Memorandum being No. 36012/23/96-Estt.(Res)  dated  22.7.1997  issued by Department of Personnel which cancelled the earlier Office  Memorandum  being  O.M.  No.   8/12/69-Estt.(SCT) dt.23-12-1970  relaxing standards   in  the  case   of   Scheduled   Castes/Tribes   candidates   in departmental  competitive  examinations  and  in  departmental  confirmation examinations.- is valid ? = 
Division Bench referred the matter to three bench judges - which in turn referred to the full bench =
 Insofar   as  Kuldeep  Singh2  is
concerned, we find that the matter was decided by this Court  having  regard
to the  constitutional provision contained in  Article   16(4A).   The  view
taken by this Court in Kuldeep Singh3  is  in  accord  with   constitutional
scheme articulated in Article 16(4A).   On  the  other  hand,  in  S.  Vinod
Kumar1, the Court failed to consider Article 16(4A).  As a matter  of  fact,
Article 16(4A) was inserted in the Constitution to  undo  the   observations
in Indra Sawhney2 that  there can not be dilution of  standards  in  matters
of promotion.=

On 23.12.1970 (1970  O.M.),  the  Department  of  Personnel
issued  Office  Memorandum  being  O.M.  No.   8/12/69-Estt.(SCT)   relaxing
standards   in  the  case   of   Scheduled   Castes/Tribes   candidates   in
departmental  competitive  examinations  and  in  departmental  confirmation
examinations.  The said O.M. remained operative for  about  17  years  until
O.M. No. 36012/23/96-Estt.(Res)  dated  22.7.1997  was  issued  whereby  the
instructions  contained  in   1970  O.M.  were  withdrawn.  =
the  Central  Secretariat  Service  Section
Officers' Grade/Stenographers' Grade 'B  (Limited  Departmental  Competitive
Examination) Regulations, 1964 (for short “1964 Regulations”)  were  amended
by Central Secretariat Service Section Officers' Grade/Stenographers'  Grade
'B (Limited Departmental  Competitive  Examination)  Amendment  Regulations,
1998 (for short “1998 Regulations”).  - suitably  -
basing on the judgment of Apex court  In S. Vinod Kumar1, this Court relying upon Indra Sawhney2  held that  provision for lower qualifying marks/standard of  evaluation  was  not
permissible under Article 16(4) of the Constitution  of  India  in  view  of
Article 335.Though Article 16(4A) had been  brought   into  Constitution  by
the Constitution (Seventy-seventh Amendment)  Act,  1995  with  effect  from
17.6.1995, 
In our view, S. Vinod Kumar1 is per incuriam.
4.          Moreover by  the  Constitution  (Eighty-second  Amendment)  Act,
2000, a proviso has been appended to Article 335 of  the  Constitution  with
effect from 8.9.2000.  
The proviso reads as follow:
Provided that nothing in  this  article  shall  prevent  in  making  of  any
provision in  favour  of  the  members  of  the  Scheduled  Castes  and  the
Scheduled Tribes for relaxation in qualifying marks in  any  examination  or
lowering  the  standards  of  evaluation,  for  reservation  in  mattes   of
promotion to any class or classes of services or posts in connect  with  the
affairs of the Union or of a State.=

This proviso  was  added  following  the  benefit  of  reservation  in
promotion conferred upon SCs and  STs  alone.   This  proviso  was  inserted
keeping in mind the judgment of this Court in Vinod  Kumar  which  took  the
view that  relaxation  in  matters  of  reservation  in  promotion  was  not
permissible under Article 16(4) in view of the command contained in  Article
335.  Once a separate category is carved out of clause  (4)  of  Article  16
then that category is being given relaxation in matters  of  reservation  in
promotion.  The proviso is confined to SCs and STs alone.  The said  proviso
is compatible with the scheme of Article 16(4-A).=

  The conclusions recorded by  the  Constitution   Bench   in   M.
Nagaraj4  are  also relevant and they read as under:
121.  The impugned constitutional amendments by which Articles  16(4-A)  and
16(4-B) have been inserted flow from Article 16(4).  They do not  alter  the
structure of Article 16(4).  They retain  the  controlling  factors  or  the
compelling reasons, namely, backwardness and  inadequacy  of  representation
which enables the States to provide for  reservation  keeping  in  mind  the
overall efficiency of the State  administration  under  Article  335.  These
impugned amendments  are  confined  only  to  SCs  and  STs.   They  do  not
obliterate any of the constitutional requirements, namely, ceiling limit  of
50% (quantitative limitation), the  concept  of  creamy  layer  (qualitative
exclusion), the sub-classification between OBCs on one hand and SCs and  STs
on the other hand as held  in  Indra  Sawhney,  the  concept  of  post-based
roster with inbuilt concept of replacement as held in R.K. Sabharwal.=
 The State is not bound to  make  reservation  for
SCs/STs in matters of promotions.  However, if they wish to  exercise  their
discretion and make such provision, the State has  to  collect  quantifiable
data showing backwardness of the class and inadequacy of  representation  of
that class in public employment in addition to compliance with Article  335.
 It is made clear that even if the State has compelling reasons,  as  stated
above, the State will have to see that its reservation  provision  does  not
lead to  excursiveness  so  as  to  breach  the  ceiling  limit  of  50%  or
obliterate the creamy layer or extend the reservation indefinitely.=

Subject  to  the above, we uphold the constitutional validity  of  the
Constitution(Seventy-Seventh (Amendment) Act;1995: the Constitution (Eighty-
first Amendment) Act, 2000; the Constitution (Eighty-second Amendment)  Act,
2000 and the Constitution (Eighty-fifth Amendment) Act, 2001.=

We are in respectful agreement  with  the  decision  in  Kuldeep
Singh3 and approve the same. Ordinarily, we would have sent  the  matter  to
the Regular Bench for disposal of the  matter   but  having  regard  to  the
nature  of  controversy  and  the  fact  that  the   Central  Administrative
Tribunal, Delhi (for short “the Tribunal”) has  followed   S.  Vinod  Kumar1
which is not a good law and resultantly 1997 O.M. is also  illegal,  in  our
view, the agony of the  appellants  need  not  be  prolonged  as   they  are
entitled to the reliefs.
11.         Consequently, civil appeals are allowed. The impugned order   is
set-aside. 1997 O.M. is declared illegal.  The respondents are  directed  to
modify the results in the Section Officers/Stenographers  (Grade  B/Grade-I)
Limited  Departmental  Competitive  Examination,  1996  by   providing   for
reservation and extend all consequential reliefs to the appellants,  if  not
granted so far.  No costs.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41774

CHIEF JUSTICE, JAGDISH SINGH KHEHAR, J. CHELAMESWAR, A.K. SIKRI, ROHINTON FALI NARIMAN 

                                                           REPORTABLE

                         IN THE SUPREME COURT OF INDIA

                          CIVIL  APPELLATE JURISDICTION

                   CIVIL APPEAL NOs. 6046-6047 OF 2004


| ROHTAS BHANKHAR & OTHERS                           |...|APPELLANT(s)          |



|                      Versus                                                   |

| UNION OF INDIA AND ANOTHER                         |..  |RESPONDENT(s)        |


                               J U D G M E N T

R.M.LODHA, CJI.
                 On 23.12.1970 (1970  O.M.),  the  Department  of  Personnel
issued  Office  Memorandum  being  O.M.  No.   8/12/69-Estt.(SCT)   relaxing
standards   in  the  case   of   Scheduled   Castes/Tribes   candidates   in
departmental  competitive  examinations  and  in  departmental  confirmation
examinations.  The said O.M. remained operative for  about  17  years  until
O.M. No. 36012/23/96-Estt.(Res)  dated  22.7.1997  was  issued  whereby  the
instructions  contained  in   1970  O.M.  were  withdrawn.   Thereafter   by
Notification dated  30.11.1998,  the  Central  Secretariat  Service  Section
Officers' Grade/Stenographers' Grade 'B  (Limited  Departmental  Competitive
Examination) Regulations, 1964 (for short “1964 Regulations”)  were  amended
by Central Secretariat Service Section Officers' Grade/Stenographers'  Grade
'B (Limited Departmental  Competitive  Examination)  Amendment  Regulations,
1998 (for short “1998 Regulations”).  The result of this amendment was  that
 in 1964 Regulations, Regulation 7, sub-regulation (3) was  omitted  on  and
from 22.7.1997.  The explanatory note appended  to  the  above  Notification
reads as follows:
In compliance with the Supreme Court's judgment in  the  case  of  S.  Vinod
Kumar vs.  Union of India  (JT  1996(8)  SC  643),  the  Central  Government
decided  to  omit  the  provisions  of  regulation  7(3)  of   the   Central
Secretariat  Service  Section  Officers'  Grade/Stenographers'   Grade   'B'
(Limited Departmental   Competitive  Examination)  Regulations,  1964  which
provides for relaxed qualifying standard in favour of the  Scheduled  Castes
and the Scheduled Tribes  candidates  to  make  up  the  deficiency  in  the
reserved quota which has been rendered legally  invalid  and  unenforceable.
This is certified that no one is being adversely  affected  by  giving  this
amendment retrospective effect.

2.          In S. Vinod Kumar1, this Court relying upon Indra Sawhney2  held
that  provision for lower qualifying marks/standard of  evaluation  was  not
permissible under Article 16(4) of the Constitution  of  India  in  view  of
Article 335.
3.          Though Article 16(4A) had been  brought   into  Constitution  by
the Constitution (Seventy-seventh Amendment)  Act,  1995  with  effect  from
17.6.1995,   S.  Vinod  Kumar1  did  not  take   into   consideration   this
constitutional provision.  In our view, S. Vinod Kumar1 is per incuriam.
4.          Moreover by  the  Constitution  (Eighty-second  Amendment)  Act,
2000, a proviso has been appended to Article 335 of  the  Constitution  with
effect from 8.9.2000.  The proviso reads as follow:
Provided that nothing in  this  article  shall  prevent  in  making  of  any
provision in  favour  of  the  members  of  the  Scheduled  Castes  and  the
Scheduled Tribes for relaxation in qualifying marks in  any  examination  or
lowering  the  standards  of  evaluation,  for  reservation  in  mattes   of
promotion to any class or classes of services or posts in connect  with  the
affairs of the Union or of a State.

5.          On 8.10.1999, when special leave  petitions,  from  which  these
appeals arise, came up for  consideration  before  a  two-Judge  Bench,  the
Bench first formulated the point for  consideration  in  the  matter,  viz.,
whether it was permissible for the  authorities  to  fix  lesser  number  of
qualifying marks for reserved candidates in the matter of 'promotion'.   The
Bench noticed three judgments  of this Court;   (1) Indra Sawhney2,  (2)  S.
Vinod Kumar1 and (3) Kuldeep Singh3  and observed  that  in  Kuldeep  Singh3
the  Court  did  not  notice   the  observations  of  majority  as  well  as
observations of Sawant, J. in  Indra Sawhney2, and the matter needed  to  be
heard by a three-Judge Bench.
6.          On 2.12.1999, the matter came up  before  a  three-Judge  Bench.
The Bench on that day reiterated what was earlier stated by   the  two-Judge
Bench in the order dated 08.10.1999  that in Kuldeep Singh3, the  Bench  had
not referred to the majority decision in Indra Sawheny2.  The Bench  doubted
the correctness of the decision in Kuldeep Singh3 and  referred  the  matter
to the Constitution Bench.  In the reference order,  the  three-Judge  Bench
also noted  the decision of this Court in Haridas Parsedia etc.  vs.  Urmila
Shakya  and  others  (Civil  Appeal  Nos.  6590-6592  of  1999  etc.)  dated
19.11.1999 wherein  it  was  observed  that  in  the  case  of  departmental
promotion examination, which is held exclusively for  SCs/STs,  there  could
be reduction to the extent of 10% in the passing marks. As  regards  Haridas
Parsedia (supra), the Bench observed that in that case, the observations  of
this Court in Indra Sawhney2 wherein it was laid down  that there cannot  be
dilution of standards in matter of promotion was not noticed.
7.          It is important to note here  that  constitutional  validity  of
Article 16(4A) came up for consideration before the  Constitution  Bench  in
the case of M. Nagaraj4.  In paras 97 to 99 (page 267) of  the  report,  the
Constitution Bench observed:
97. As stated above, clause (4-A) of Article 16 is carved out of clause  (4)
of Article 16. Clause (4-A) provides benefit  of  reservation  in  promotion
only to SCs and STs.  In S. Vinod Kumar v. Union of India  this  Court  held
that relaxation of qualifying marks and standards of evaluation  in  matters
of reservation in promotion was not permissible under Article 16(4) in  view
of Article 335 of the  Constitution.   This  was  also  the  view  in  Indra
Sawhney.

98.   By the Constitution (Eighty-second Amendment) Act, 2000 a proviso  was
inserted at the end of Article 335 of the Constitution which reads as  under
:

“Provided that nothing in this  article  shall  prevent  in  making  of  any
provision in  favour  of  the  members  of  the  Scheduled  Castes  and  the
Scheduled Tribes for relaxation in qualifying marks in  any  examination  or
lowering  the  standards  of  evaluation,  for  reservation  in  matters  of
promotion to any class or classes of services or posts  in  connection  with
the affairs of the Union or of a State.”

99.   This proviso  was  added  following  the  benefit  of  reservation  in
promotion conferred upon SCs and  STs  alone.   This  proviso  was  inserted
keeping in mind the judgment of this Court in Vinod  Kumar  which  took  the
view that  relaxation  in  matters  of  reservation  in  promotion  was  not
permissible under Article 16(4) in view of the command contained in  Article
335.  Once a separate category is carved out of clause  (4)  of  Article  16
then that category is being given relaxation in matters  of  reservation  in
promotion.  The proviso is confined to SCs and STs alone.  The said  proviso
is compatible with the scheme of Article 16(4-A).

8.          The conclusions recorded by  the  Constitution   Bench   in   M.
Nagaraj4  are  also

relevant and they read as under:
121.  The impugned constitutional amendments by which Articles  16(4-A)  and
16(4-B) have been inserted flow from Article 16(4).  They do not  alter  the
structure of Article 16(4).  They retain  the  controlling  factors  or  the
compelling reasons, namely, backwardness and  inadequacy  of  representation
which enables the States to provide for  reservation  keeping  in  mind  the
overall efficiency of the State  administration  under  Article  335.  These
impugned amendments  are  confined  only  to  SCs  and  STs.   They  do  not
obliterate any of the constitutional requirements, namely, ceiling limit  of
50% (quantitative limitation), the  concept  of  creamy  layer  (qualitative
exclusion), the sub-classification between OBCs on one hand and SCs and  STs
on the other hand as held  in  Indra  Sawhney,  the  concept  of  post-based
roster with inbuilt concept of replacement as held in R.K. Sabharwal.

122.  We reiterate that the ceiling limit of  50%,  the  concept  of  creamy
layer and  the  compelling  reasons,  namely,  backwardness,  inadequacy  of
representation and overall administrative efficiency are all  constitutional
requirements without which the  structure  of  equality  of  opportunity  in
Article 16 would collapse.

123.  However, in this case, as stated above, the main  issue  concerns  the
“extent of reservation”.  In this regard the State concerned  will  have  to
show  in  each  case  the  existence  of  the  compelling  reasons,  namely,
backwardness

inadequacy of representation and overall  administrative  efficiency  before
making provision for reservation.  As stated above, the  impugned  provision
is an enabling provision.  The State is not bound to  make  reservation  for
SCs/STs in matters of promotions.  However, if they wish to  exercise  their
discretion and make such provision, the State has  to  collect  quantifiable
data showing backwardness of the class and inadequacy of  representation  of
that class in public employment in addition to compliance with Article  335.
 It is made clear that even if the State has compelling reasons,  as  stated
above, the State will have to see that its reservation  provision  does  not
lead to  excursiveness  so  as  to  breach  the  ceiling  limit  of  50%  or
obliterate the creamy layer or extend the reservation indefinitely.

124.  Subject  to  the above, we uphold the constitutional validity  of  the
Constitution(Seventy-Seventh (Amendment) Act;1995: the Constitution (Eighty-
first Amendment) Act, 2000; the Constitution (Eighty-second Amendment)  Act,
2000 and the Constitution (Eighty-fifth Amendment) Act, 2001.

9.          We do not think, it is necessary for us to deal with  the  width
and scope of  Article 16(4A) any further.  Insofar   as  Kuldeep  Singh2  is
concerned, we find that the matter was decided by this Court  having  regard
to the  constitutional provision contained in  Article   16(4A).   The  view
taken by this Court in Kuldeep Singh3  is  in  accord  with   constitutional
scheme articulated in Article 16(4A).   On  the  other  hand,  in  S.  Vinod
Kumar1, the Court failed to consider Article 16(4A).  As a matter  of  fact,
Article 16(4A) was inserted in the Constitution to  undo  the   observations
in Indra Sawhney2 that  there can not be dilution of  standards  in  matters
of promotion.
10.         We are in respectful agreement  with  the  decision  in  Kuldeep
Singh3 and approve the same. Ordinarily, we would have sent  the  matter  to
the Regular Bench for disposal of the  matter   but  having  regard  to  the
nature  of  controversy  and  the  fact  that  the   Central  Administrative
Tribunal, Delhi (for short “the Tribunal”) has  followed   S.  Vinod  Kumar1
which is not a good law and resultantly 1997 O.M. is also  illegal,  in  our
view, the agony of the  appellants  need  not  be  prolonged  as   they  are
entitled to the reliefs.
11.         Consequently, civil appeals are allowed. The impugned order   is
set-aside. 1997 O.M. is declared illegal.  The respondents are  directed  to
modify the results in the Section Officers/Stenographers  (Grade  B/Grade-I)
Limited  Departmental  Competitive  Examination,  1996  by   providing   for
reservation and extend all consequential reliefs to the appellants,  if  not
granted so far.  No costs.

                                .......................CJI.
                                       (R.M. LODHA)


                                  .........................J.
                                     (JAGDISH SINGH KHEHAR)


                                    .........................J.
                                       (J. CHELAMESWAR)


                                       .........................J.
                                       (A.K. SIKRI)


      NEW DELHI;                  .........................J.
JULY 15, 2014.              (ROHINTON FALI NARIMAN)



ITEM NO.502               COURT NO.1               SECTION XVI

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

                     Civil Appeal No(s). 6046-6047/2004

ROHTAS BHANKHAR & ORS                            Appellant(s)

                                VERSUS

U.O.I. & ANR                                    Respondent(s)


Date : 15/07/2014 These appeals were called on for hearing today.

CORAM :
             HON'BLE THE  CHIEF JUSTICE
             HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
             HON'BLE MR. JUSTICE J. CHELAMESWAR
             HON'BLE MR. JUSTICE A.K. SIKRI
             HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN

For Appellant(s) Dr. Krishan Singh Chauhan,Adv.
                       Mr. Ajit Kumar Ekka, Adv.
                       Mr. Ravi Prakash, Adv.
                       Mr. Chand Kiran, Adv.
                       Mr. Murari Lal, Adv.

For Respondent(s)      Mr. Ranjit Kumar, SG
                       Mr. P.S. Patwalia, ASG
                       Mr. A. Mariarputham, Sr. Adv.
                       Ms. V. Mohana, Adv.
                       Ms. Binu Tamta, Adv. Adv.
                       Mr. D.L. Chidananda, Adv. for
                       Ms. Sushma Suri, Adv.

            UPON hearing counsel the Court made the following
                               O R D E R

            Civil Appeals are allowed in terms of reportable judgment.


|(PARDEEP KUMAR)                        | |(RENU DIWAN)                          |
|AR-cum-PS                              | |COURT MASTER                          |


      [SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE]

1       (1996) 6 SCC 580,  S. VINOD KUMAR & ANOTHER VS. UNION OF INDIA
          AND OTHERS
2       1992 Supp (3) SCC 217, INDRA SAWHNEY VS. UNION OF INDIA AND OTHERS
3       (1997) 9 SCC 199, SUPERINTENDING ENGINEER, PUBLIC HEALTH, U.T.
         CHANDIGARH AND OTHERS VS. KULDEEP SINGH & OTHERS
4     . (2006)8 SCC 212  M. NAGARAJ AND OTHERS VS. UNION OF INDIA AND
OTHERS

L.A.Act - Compensation for Building - guess estimate is not warranted when material evidence in the shape of Ext.C-3 Valuation Report is available on record for reduction of value fixed already - LAO awrded Rs.1,43,430/- NO records filed on which basis he arrived that rate - in trial court commissioner was appointed with the assistance of Retd. Eng. value of the Building was assessed for Rs. 4,45,000/- . Trial court accepted the evidence - No rebuttal evidence - but High court reduced it to Rs.3,50,000/- with out justifiable reasons - Apex court held In the facts of the case, we find force in the submission of the learned counsel for the appellants that guess estimate is not warranted when material evidence in the shape of Ext.C-3 Valuation Report is available on record. As already seen, there is no rebuttal evidence adduced by the respondents insofar as the valuation of the building is concerned and the High Court committed error in resorting to guess estimate for reducing the value of the building and the impugned judgment in this regard is liable to be set aside.=CIVIL APPEAL NO. 6396 OF 2014 [Arising out of Special Leave Petition (Civil) No.31619 of 2012] Rajesh Valel Puthuvalil & Anr. .. Appellant(s) -vs- Inland Waterways Authority of India & Anr. .. Respondent(s) = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41770

    L.A.Act - Compensation for Building - guess  estimate  is  not  warranted  when material evidence in the shape of Ext.C-3 Valuation Report is  available  on record for reduction of value fixed  already - LAO awrded Rs.1,43,430/- NO records filed on which basis he arrived that rate - in trial court commissioner was appointed with the assistance of Retd. Eng. value of the Building was assessed for Rs. 4,45,000/- . Trial court accepted the evidence - No rebuttal evidence - but High court reduced it to Rs.3,50,000/- with out justifiable reasons - Apex court held In the facts of the case, we find force in the  submission  of  the  learned counsel for the  appellants  that  guess  estimate  is  not  warranted  when material evidence in the shape of Ext.C-3 Valuation Report is  available  on record.   As already seen, there is  no  rebuttal  evidence  adduced  by  the respondents insofar as the valuation of the building is  concerned  and  the High Court committed error in resorting to guess estimate for  reducing  the value of the building and the impugned judgment in this regard is liable  to be set aside.=

Admittedly, the total area of the building was 758  Sq.  ft.  and
the
Land Acquisition Officer awarded a sum of  Rs.1,43,430/-  towards  value  of
structure.
No records were produced to show as to how  the  said  valuation
was made  by  the  respondents.  
In  the  Reference  Court  the  appellants
herein/claimants took out a Commission to fix the value of the building  and
the  Commissioner  was  assisted  by  AW-2  a  retired  Assistant  Executive
Engineer who valued the building and prepared Ext.C-3 Valuation  Report  and
Ext.C-4 Plan.
Ext.C-1 and C-2 are Mahazar prepared by the Commissioner  and
his Report  respectively.  
The  value  of  the  building  was  assessed  at
Rs.4,93,000/- and as  the  building  was  12  years  old,  depreciation  was
calculated and after deduction the net value was  arrived  at  Rs.4,45,000/-
and the Reference Court accepted the same.
The High Court held that  having
regard to the cost of construction of the building  in  the  year  1997  the
value of construction fixed by the Reference Court is  on  the  higher  side
and re-fixed the value of the building at Rs.3,50,000/- on  guess  estimate.

In the facts of the case, we find force in the  submission  of  the  learned
counsel for the  appellants  that  guess  estimate  is  not  warranted  when
material evidence in the shape of Ext.C-3 Valuation Report is  available  on
record.  
As already seen, there is  no  rebuttal  evidence  adduced  by  the
respondents insofar as the valuation of the building is  concerned  and  the
High Court committed error in resorting to guess estimate for  reducing  the
value of the building and the impugned judgment in this regard is liable  to
be set aside.

6.    The appeal is allowed and the impugned  judgment  of  the  High  Court
insofar as re-fixing the value of structures concerned is set aside and  its
determination  made  by  the  Reference  Court  is  restored.    No   costs.
 

 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41770

                                                        NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NO.   6396     OF 2014
      [Arising out of Special Leave Petition (Civil) No.31619 of 2012]



Rajesh Valel Puthuvalil & Anr.          ..              Appellant(s)

      -vs-

Inland Waterways Authority
of India & Anr.                         ..             Respondent(s)


                               J U D G M E N T



C. NAGAPPAN, J.



Leave granted.

2.    This appeal is preferred against the judgment and  final  order  dated
30.3.2012 passed by the High Court of Kerala at Ernakulam in  L.A.A.  no.995
of 2010.

3.    The property of  the  appellants  herein,  both  land  and  structures
situated at Alappad Village at Karunagappally Taluk of Kollam  District  was
acquired at the instance of respondent  no.1  herein,  for  the  purpose  of
widening the narrow stretches of National Waterways no.3 and award  came  to
be passed.  Dissatisfied with the award the  appellants/claimants  preferred
reference and the Reference Court  re-determined  the  land  value  and  the
value of the building, by enhancing it.  Challenging  the  same,  respondent
no.1 herein preferred appeal and the High Court confirmed the land value re-
determined by the Reference Court and at the same time reduced the value  of
the structures from a sum  of  Rs.4,45,000/-  to  a  sum  of  Rs.3,50,000/-.
Aggrieved by the same the appellants/claimants have  preferred  the  present
appeal.

4.    The learned counsel for the appellants strenuously contended that  the
High Court committed an error in reducing the compensation for the  building
on the basis of guess estimate discarding  the  objective  material  in  the
form of Ext.C-3 Valuation Report available on  record,  resulting  in  grave
injustice to the appellants.  Per contra, the learned counsel appearing  for
the respondents contended that the High Court taking into account the  total
area and the year  of  construction  has  re-determined  the  value  of  the
structures and it does not call for any interference.

5.    Admittedly, the total area of the building was 758  Sq.  ft.  and  the
Land Acquisition Officer awarded a sum of  Rs.1,43,430/-  towards  value  of
structure.  No records were produced to show as to how  the  said  valuation
was made  by  the  respondents.   In  the  Reference  Court  the  appellants
herein/claimants took out a Commission to fix the value of the building  and
the  Commissioner  was  assisted  by  AW-2  a  retired  Assistant  Executive
Engineer who valued the building and prepared Ext.C-3 Valuation  Report  and
Ext.C-4 Plan.  Ext.C-1 and C-2 are Mahazar prepared by the Commissioner  and
his Report  respectively.   The  value  of  the  building  was  assessed  at
Rs.4,93,000/- and as  the  building  was  12  years  old,  depreciation  was
calculated and after deduction the net value was  arrived  at  Rs.4,45,000/-
and the Reference Court accepted the same.  The High Court held that  having
regard to the cost of construction of the building  in  the  year  1997  the
value of construction fixed by the Reference Court is  on  the  higher  side
and re-fixed the value of the building at Rs.3,50,000/- on  guess  estimate.
In the facts of the case, we find force in the  submission  of  the  learned
counsel for the  appellants  that  guess  estimate  is  not  warranted  when
material evidence in the shape of Ext.C-3 Valuation Report is  available  on
record.  As already seen, there is  no  rebuttal  evidence  adduced  by  the
respondents insofar as the valuation of the building is  concerned  and  the
High Court committed error in resorting to guess estimate for  reducing  the
value of the building and the impugned judgment in this regard is liable  to
be set aside.

6.    The appeal is allowed and the impugned  judgment  of  the  High  Court
insofar as re-fixing the value of structures concerned is set aside and  its
determination  made  by  the  Reference  Court  is  restored.    No   costs.


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


                                             ……………………………J.
                                             (C. Nagappan)
New Delhi;
July 15, 2014.

Sections 143, 147, 148, 323, 324, 326, 307, read with Section 114 of IPC - Powers of Appellant court - when to interfere with acquittal orders - Trial court acquitted the all accused due to delay in FIR about 2 hours , serious contradictions in the evidence of eye witnesses - non-blood stained weapons - High court set aside the acquittal order of the lower court and punish the accused under sec.324 /34 to pay fine Rs.10,000/- for each count - Apex court set the order of High court and framed principles - general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” =CRIMINAL APPEAL NO.1381 of 2014 (@ SPECIAL LEAVE PETITION (CRL.)NO.4018 OF 2012) C.K. DASEGOWDA & ORS. .....APPELLANTS VERSUS STATE OF KARNATAKA .....RESPONDENT = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41768

Sections 143,  147,  148,  323,  324,  326,  307,  read  with Section 114 of IPC - Powers of Appellant court - when to interfere with acquittal orders - Trial court acquitted the all accused due to delay in FIR about 2 hours , serious contradictions in the evidence of eye witnesses - non-blood stained weapons - High court set aside the acquittal order of the lower court and punish the accused under sec.324 /34 to pay fine Rs.10,000/- for each count - Apex court set the order of High court and framed principles - general principles regarding powers of appellate Court while dealing with an  appeal against an order of acquittal emerge; (1)  An  appellate  Court  has  full  power  to  review,  re-appreciate  and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction  or condition on exercise of such power and an appellate Court on  the  evidence before it may reach its own conclusion, both on questions  of  fact  and  of law; (3) Various expressions, such  as,  'substantial  and  compelling  reasons', 'good and  sufficient  grounds',  'very  strong  circumstances', 'distorted conclusions',  'glaring  mistakes',  etc.  are  not  intended   to   curtail extensive powers of an appellate Court in an appeal against acquittal.  Such phraseologies are  more  in  the  nature  of  'flourishes  of  language'  to emphasize the reluctance of an appellate Court to interfere  with  acquittal than to curtail the power of the Court to review the evidence  and  to  come
to its own conclusion. (4) An appellate  Court,  however,  must  bear  in  mind  that  in  case  of
acquittal, there is double presumption in favour of the  accused.   Firstly, the  presumption  of  innocence  available  to  him  under  the  fundamental principle of criminal jurisprudence that every person shall be  presumed  to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption  of  his innocence is further reinforced, reaffirmed and strengthened  by  the  trial court. (5) If two reasonable conclusions are possible on the basis of the  evidence on record, the appellate court should not disturb the finding  of  acquittal recorded by the trial court.” =

on  11.8.1999,  at  about  7:00 a.m.,
 When the complainant  and  PW-3  were  coming
back, accused nos. 1 to 10 (A-1 to A-10) attacked them with deadly  weapons.=

It is alleged by the prosecution that 
A-1 assaulted PW-3 with iron blade  of a plough on his head. 
 A-3  assualted  PW-3  on  his  back  and  thigh.  
A-4 assualted PW-3 on both his legs with iron blade of plough. 
A-2 assaulted PW- 1 with iron rod on his left shoulder. 
A-6, A-8 and  A-10  kicked  PW-1.  
A-5 and A-7 assaulted Bhagyamma- PW-6 with iron blade of plough and  
A-9  kicked her.=

A complaint (Ex.-P1) was lodged on 11.8.1999 at 9:00  a.m.  before  the
police.  
The  Crime  Case  No.  CC  728  of  2000  was  registered  by  the
Investigating Officer. The injured were taken  to  the  hospital  at  around
2:00 p.m.
PW-3 had sustained fracture of tibia, fibula and ankle.
PW-6  had
sustained simple injuries.
PW-4 Jalaiah  and  PW-9-  Shivanna  are  the  eye witnesses to the incident.=

on their voluntary instance, M.O.  1  to
M.O. 3 (clubs), M.O. 4 & M.O. 5 (iron blade of  plough)  and  M.O.  6  (iron
rod) were recovered.
However, the said weapons had  no  incriminating  marks like blood stains on them.
The accused were  charge-sheeted  for  committing offences under Sections 143,  147,  148,  323,  324,  326,  307,  read  with Section 114 of IPC =
Trial court 

  In the evidence, 
PW-1 has stated that
 A-2 had assaulted him  with  iron rod, A-5 held him, 
A-1 assaulted PW-3 with iron rod. 
He further stated  that
A-4 assaulted PW-3 on his legs with iron blade of plough. 
A-3, A-6  and  A-7 were holding  clubs  and  assaulting  PW-3.  
A-1  instigated  other  accused persons to kill PW-1.

7.  The evidence of 
PW-3 also discloses that 
A-4  assaulted  him  with  iron blade of plough on his legs and hands. 
A-6, A-7 and A-5 assaulted  him  with clubs on his back, thigh and shoulder.  
The  other  accused  persons  kicked him.

8.  PW-6 in her evidence, stated that  she  was  assaulted  by  the  accused
persons but she could not name the persons.  
This  witness  was  treated  as hostile.
Accordingly, the trial court ordered the  acquittal  of
accused-appellant nos. 1 to 10 under Section 235(1)  of  CrPC  for  offences
punishable under Sections 143, 147,  148,  323,  324,  326,  307  read  with
Section 114 of IPC.=

High court held 
The High Court, on the basis of facts  and  evidence  on  record,  held
that with regard to the nature of offences, the evidence and facts  narrated
in the FIR discloses
that A-3 assaulted PW-3 with iron blade of  plough.
In
the evidence,
it is further stated that A-4 also assaulted  PW-3  with  iron
blade of plough.
But in the  wound  certificate,  there  is  no  mention  of presence or participation of A-4.
It is evident that there are fractures  in
the tibia and fibula which could have occurred because of fall from  bicycle
as well.
The fracture injury is not caused  intentionally.
Therefore,  from
the nature and manner of assault, as narrated, it can only be said that  the
accused is guilty under Section 324 read with Section 34 of IPC for  causing
injuries to PW-1 and PW-3 on separate  counts.  
Therefore,  the  High  Court
convicted and sentenced the appellants to pay a fine of [pic] 10,000/-  each
on separate counts and in default, to  undergo  simple  imprisonment  for  a
period of one year.=
Apex court 
we are of the opinion that the High  Court
erred in reversing the Order of the  trial  court  in  the  absence  of  any
substantial material evidence on record which regarded the decision  of  the
trial court as perverse.

However,  it  will  not
interfere with an order of acquittal lightly or  merely  because  one  other
view is possible,  because  with  the  passing  of  an  order  of  acquittal
presumption of innocence in  favour  of  the  accused  gets  reinforced  and
strengthened. =
The High Court would not be justified to  interfere  with  the
order of acquittal merely because it feels that sitting as a trial court  it
would have proceeded to record a conviction;
a duty  is  cast  on  the  High
Court while reversing an order of  acquittal  to  examine  and  discuss  the
reasons given by the trial court to acquit the accused and  then  to  dispel
those reasons.
If the  High  Court  fails  to  make  such  an  exercise  the
judgment will suffer from serious infirmity. =

BASIC PRINCIPLES FRAMED BY APEX COURT
From the above decisions, in our considered view, 
the following  
general principles regarding powers of appellate Court while dealing with an  appeal
against an order of acquittal emerge;

(1)  An  appellate  Court  has  full  power  to  review,  re-appreciate  and
reconsider the evidence upon which the order of acquittal is founded;

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

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

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

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

CONCLUSION 

We therefore, set aside the order of the High Court and reinforce  the
order of acquittal by the trial court.  The appeal is allowed.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41768

DIPAK MISRA, V. GOPALA GOWDA
                                                 REPORTABLE

      IN THE SUPREME COURT OF INDIA                  CRIMINAL APPELLATE
                                JURISDICTION

   CRIMINAL APPEAL NO.1381 of 2014                        (@ SPECIAL LEAVE
                       PETITION (CRL.)NO.4018 OF 2012)



            C.K. DASEGOWDA & ORS.                 .....APPELLANTS

                                   VERSUS

            STATE OF KARNATAKA                    .....RESPONDENT



                               J U D G M E N T

V. GOPALA GOWDA, J.

      This appeal is filed by the appellants questioning the correctness  of
the judgment and final order dated 11.08.2010 passed by the  High  Court  of
Karnataka at Bangalore in Criminal Appeal No. 1256 of 2005 in setting  aside
the order of acquittal of the appellants passed by the trial  court  thereby
imposing sentence of conviction  on  the  accused  for  offences  punishable
under Section 324 read with Section  34  of  IPC  for  causing  injuries  on
separate count.

2.   Necessary relevant facts are stated hereunder to  appreciate  the  case
of the appellants and also to find out whether  they  are  entitled  to  the
relief as prayed for in this appeal.

3.  It is the case of the prosecution  that  on  11.8.1999,  at  about  7:00
a.m., PW-3 Kempanna had gone to the house of the complainant  on  a  bicycle
to take milk for his children. When the complainant  and  PW-3  were  coming
back, accused nos. 1 to 10 (A-1 to A-10) attacked them with deadly  weapons.
It is alleged by the prosecution that A-1 assaulted PW-3 with iron blade  of
a plough on his head.  A-3  assualted  PW-3  on  his  back  and  thigh.  A-4
assualted PW-3 on both his legs with iron blade of plough. A-2 assaulted PW-
1 with iron rod on his left shoulder. A-6, A-8 and  A-10  kicked  PW-1.  A-5
and A-7 assaulted Bhagyamma- PW-6 with iron blade of plough and  A-9  kicked
her.

4.   A complaint (Ex.-P1) was lodged on 11.8.1999 at 9:00  a.m.  before  the
police.   The  Crime  Case  No.  CC  728  of  2000  was  registered  by  the
Investigating Officer. The injured were taken  to  the  hospital  at  around
2:00 p.m. PW-3 had sustained fracture of tibia, fibula and ankle.  PW-6  had
sustained simple injuries. PW-4 Jalaiah  and  PW-9-  Shivanna  are  the  eye
witnesses to the incident.

5.  The accused after their arrest, on their voluntary instance, M.O.  1  to
M.O. 3 (clubs), M.O. 4 & M.O. 5 (iron blade of  plough)  and  M.O.  6  (iron
rod) were recovered. However, the said weapons had  no  incriminating  marks
like blood stains on them. The accused were  charge-sheeted  for  committing
offences under Sections 143,  147,  148,  323,  324,  326,  307,  read  with
Section 114 of IPC. Thereafter, the learned Magistrate  took  cognizance  of
the alleged offences  and  registered  CC  No.  728  of  2000.  The  learned
Magistrate complying with the provisions of Section 209 of  CrPC,  committed
the case to the Sessions  Court  for  trial  since  offences  alleged  under
Section 307 are to be exclusively tried by that court. The  accused  persons
pleaded not guilty and claimed trial. The  prosecution  in  support  of  its
case, got examined PW-1 to PW-10 and marked Ex. P-1 to P-9 and MOs. 1 to  6.
The accused-appellants got marked Ex.  D-1  and  had  also  submitted  their
written reply while recording their statements under Section 313 of CrPC.

6.   In the evidence, PW-1 has stated that A-2 had assaulted him  with  iron
rod, A-5 held him, A-1 assaulted PW-3 with iron rod. He further stated  that
A-4 assaulted PW-3 on his legs with iron blade of plough. A-3, A-6  and  A-7
were holding  clubs  and  assaulting  PW-3.  A-1  instigated  other  accused
persons to kill PW-1.

7.  The evidence of PW-3 also discloses that A-4  assaulted  him  with  iron
blade of plough on his legs and hands. A-6, A-7 and A-5 assaulted  him  with
clubs on his back, thigh and shoulder.  The  other  accused  persons  kicked
him.

8.  PW-6 in her evidence, stated that  she  was  assaulted  by  the  accused
persons but she could not name the persons.  This  witness  was  treated  as
hostile.

9.  The trial court, on appreciation of the  evidence  on  record  has  held
that the prosecution has  failed  to  prove  any  of  the  offences  alleged
against the accused persons. There is an  element  of  reasonable  doubt  on
many counts, which have already been explained. The benefit of doubt  always
goes to the accused. Accordingly, the trial court ordered the  acquittal  of
accused-appellant nos. 1 to 10 under Section 235(1)  of  CrPC  for  offences
punishable under Sections 143, 147,  148,  323,  324,  326,  307  read  with
Section 114 of IPC. Aggrieved by the same, the State of  Karnataka  appealed
before the High Court  challenging  the  judgment  and  order  of  acquittal
passed by the learned trial judge.

10.  The High Court, on the basis of facts  and  evidence  on  record,  held
that with regard to the nature of offences, the evidence and facts  narrated
in the FIR discloses that A-3 assaulted PW-3 with iron blade of  plough.  In
the evidence, it is further stated that A-4 also assaulted  PW-3  with  iron
blade of plough. But in the  wound  certificate,  there  is  no  mention  of
presence or participation of A-4. It is evident that there are fractures  in
the tibia and fibula which could have occurred because of fall from  bicycle
as well. The fracture injury is not caused  intentionally.  Therefore,  from
the nature and manner of assault, as narrated, it can only be said that  the
accused is guilty under Section 324 read with Section 34 of IPC for  causing
injuries to PW-1 and PW-3 on separate  counts.  Therefore,  the  High  Court
convicted and sentenced the appellants to pay a fine of [pic] 10,000/-  each
on separate counts and in default, to  undergo  simple  imprisonment  for  a
period of one year.

11.   The accused-appellants challenged  the  decision  of  the  High  Court
raising various facts and legal contentions  and  have  prayed  for  setting
aside the impugned judgment of the High Court.

12.  The learned senior counsel on behalf of the appellants, Ms. Kiran  Suri
contended that the High Court has erred in reversing the Order of the  trial
court since the trial court had acquitted the accused-appellants only  after
proper appreciation of  the  evidence  on  record  and  inconsistencies  and
contradictions found in the evidence of prosecution witnesses  and  noticing
the previous enmity between the parties, delay in recording  the  statements
of the prosecution witnesses and also statement of eye witness, it has  held
that it creates a reasonable doubt as to the guilt of the accused.

13.   The learned  senior  counsel  on  behalf  of  the  appellants  further
contended that conviction of the accused-appellants  under  Section  324  of
IPC read with Section 34 is absolutely arbitrary, unreasonable and  contrary
to the above provisions of IPC.

14.   It was further contended by the learned senior counsel that  there  is
discrepancy regarding the names of the assailants in  the  FIR  and  in  the
wound certificate and further the motive behind the alleged assault  by  the
accused-appellants has also not been proved by the prosecution  by  adducing
evidence.

15.  On the other hand, the learned counsel  on  behalf  of  the  respondent
contended that PW-1 and PW-3 are injured eye witnesses. The  fact  that  the
accused-appellants had assaulted these persons with iron rod, gula and  club
is corroborated by the medical evidence of PW-5 and  PW-7.  It  was  further
argued by  the  learned  counsel  that  the  appellants  had  assaulted  the
complainant on account of  previous  enmity  with  them.  According  to  the
learned  counsel  for  the  respondent,  PW-2  is  an  independent  witness.
Therefore, according to the learned counsel,  the  ingredients  of  unlawful
assembly, rioting, causing grievous hurt  with  dangerous  weapons  with  an
intention to kill, have been proved.

16.   We have perused the facts and legal evidence on record. We  have  also
carefully appreciated the contentions of both the parties. On the  basis  of
the facts and evidence on record, we are of the opinion that the High  Court
erred in reversing the Order of the  trial  court  in  the  absence  of  any
substantial material evidence on record which regarded the decision  of  the
trial court as perverse.

17.  In the case of Chandrappa v. State of Karnataka[1], it  has  been  held
by this Court as under:
“39. In Harijana Thirupala v.  Public Prosecutor, High Court of  A.P.,  this
Court said:
12. Doubtless the High Court in appeal either against an order of  acquittal
or conviction as a court of first  appeal  has  full  power  to  review  the
evidence to reach its own  independent  conclusion.  However,  it  will  not
interfere with an order of acquittal lightly or  merely  because  one  other
view is possible,  because  with  the  passing  of  an  order  of  acquittal
presumption of innocence in  favour  of  the  accused  gets  reinforced  and
strengthened. The High Court would not be justified to  interfere  with  the
order of acquittal merely because it feels that sitting as a trial court  it
would have proceeded to record a conviction; a duty  is  cast  on  the  High
Court while reversing an order of  acquittal  to  examine  and  discuss  the
reasons given by the trial court to acquit the accused and  then  to  dispel
those reasons. If the  High  Court  fails  to  make  such  an  exercise  the
judgment will suffer from serious infirmity.


40. In Ramanand Yadav v.   Prabhunat Jha this Court observed;
      21. There is no embargo on the appellate Court reviewing the  evidence
upon which  an  order  of  acquittal  is  based.  Generally,  the  order  of
acquittal shall not be interfered with because the presumption of  innocence
of the accused is further  strengthened  by  acquittal.  The  golden  thread
which runs through the web of administration of justice  in  criminal  cases
is that if two views are possible on the evidence adduced in the  case,  one
pointing to the guilt of the accused and the other  to  his  innocence,  the
view which is favourable to the accused should  be  adopted.  The  paramount
consideration of the Court is to  ensure  that  miscarriage  of  justice  is
prevented. A miscarriage of justice which may arise from  acquittal  of  the
guilty is no less than from the conviction of an innocent. In a  case  where
admissible evidence is ignored, a duty is cast upon the appellate  Court  to
re-appreciate the evidence in a case where the accused has  been  acquitted,
for the purpose of ascertaining as to whether any of the  accused  committed
any offence or not".

41. Recently, in Kallu v. State of M.P., this Court stated;
   8.  While  deciding  an  appeal  against  acquittal,  the  power  of  the
Appellate Court is no less than the power exercised  while  hearing  appeals
against conviction. In both types of appeals, the  power  exists  to  review
the entire evidence. However, one significant difference is  that  an  order
of acquittal will not be interfered with, by an appellate court,  where  the
judgment of the trial court is based on  evidence  and  the  view  taken  is
reasonable and plausible. It will not reverse  the  decision  of  the  trial
court merely because a different view is possible. The appellate court  will
also bear in mind that there is a presumption of innocence in favour of  the
accused  and  the  accused  is  entitled  to  get   the   benefit   of   any
doubt. Further if it decides to interfere,  it  should  assign  reasons  for
differing with the decision of the trial court".
                   (emphasis supplied)

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

(1)  An  appellate  Court  has  full  power  to  review,  re-appreciate  and
reconsider the evidence upon which the order of acquittal is founded;

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

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

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

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


18.   Therefore, based on the legal principles laid down by  this  Court  in
the abovementioned case and applying the same to the facts and  evidence  on
record of this case, we are of the opinion that  the  High  Court  erred  in
setting aside the order of the acquittal of the appellants  in  the  absence
of any legal and factual evidence  on  record  to  prove  the  findings  and
reasons recorded in the judgment  of  the  trial  court  as  perverse.   The
contentions urged on behalf of the appellants are well founded as  the  same
are in conformity with the legal  principles  laid  down  in  the  aforesaid
cases.

19.   We therefore, set aside the order of the High Court and reinforce  the
order of acquittal by the trial court.  The appeal is allowed.


……………………………………………………J.  [DIPAK MISRA]



……………………………………………………J.       [V. GOPALA GOWDA]



New Delhi,                                         July 15, 2014


-----------------------
[1]    (2007) 4  SCC 415



-----------------------
- 13 -

Sec.125 Cr.P.C. - Maintenance Case - liability of husband - Husband bound to pay maintenance by doing labour also- in case of delay in court proceedings , the wife is entitled for maintenance from the date of petition - Apex court held that it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds and further held that there was enormous delay in disposal of the proceeding under Section 125 of the Code and most of the time the husband had taken adjournments and some times the court dealt with the matter showing total laxity. The wife sustained herself as far as she could in that state for a period of nine years. The circumstances, in our considered opinion, required grant of maintenance from the date of application and by so granting the High Court has not committed any legal infirmity. = CRIMINAL APPEAL NO.1331 OF 2014 (Arising out of S.L.P. (Criminal) No. 1565 of 2013) Bhuwan Mohan Singh … Appellant Versus Meena & Ors. …Respondent = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41767

    Sec.125 Cr.P.C. - Maintenance Case - liability of husband - Husband bound to pay maintenance by doing labour also- in case of delay  in court proceedings , the wife is entitled for maintenance from the date of petition -  Apex court held that it is the sacrosanct duty to render the financial support even if  the husband is required to earn money  with  physical  labour,  if  he  is  able bodied.  There is no escape route unless there is an order  from  the  Court that the wife is not entitled to get maintenance from  the  husband  on  any
legally permissible grounds and further held that there was enormous  delay  in  disposal  of
the proceeding under Section 125 of the  Code  and  most  of  the  time  the husband had taken adjournments and some  times  the  court  dealt  with  the matter showing total laxity.  The wife  sustained  herself  as  far  as  she could in that state for a period of nine years.  The circumstances,  in  our considered  opinion,  required  grant  of  maintenance  from  the  date   of
application and by so granting the High Court has not  committed  any  legal infirmity. =

Be it ingeminated that Section 125 of the Code of  Criminal  Procedure  (for
short “the Code”) was conceived to ameliorate the agony, anguish,  financial
suffering of a woman who left her matrimonial home for the reasons  provided
in the provision so that some suitable  arrangements  can  be  made  by  the
Court and she can sustain herself and also her children  if  they  are  with
her.
The concept of sustenance does not necessarily mean to lead  the  life
of an animal, feel like an unperson to be thrown away from  grace  and  roam
for her basic maintenance somewhere else.
 She is entitled in law to lead  a
life in the similar manner as she would have  lived  in  the  house  of  her
husband.
That is where the status and strata come into play,  and  that  is
where the obligations of the husband, in case of a wife, become a  prominent
one.
In a proceeding of this nature, the husband  cannot  take  subterfuges
to deprive her of the benefit of living with dignity.
Regard being  had  to
the solemn pledge at the time of marriage and also in  consonance  with  the
statutory law that governs the field, it is the obligation  of  the  husband
to see that the wife does not become a destitute, a beggar.
A situation  is
not to be maladroitly created whereunder she is compelled to resign  to  her
fate and think of life “dust unto dust”.
It is totally  impermissible.   In
fact, it is the sacrosanct duty to render the financial support even if  the
husband is required to earn money  with  physical  labour,  if  he  is  able
bodied.  
There is no escape route unless there is an order  from  the  Court
that the wife is not entitled to get maintenance from  the  husband  on  any
legally permissible grounds. =


        In the present case, as we find, there was enormous  delay  in  disposal  of
the proceeding under Section 125 of the  Code  and  most  of  the  time  the
husband had taken adjournments and some  times  the  court  dealt  with  the
matter showing total laxity.  The wife  sustained  herself  as  far  as  she
could in that state for a period of nine years.  The circumstances,  in  our
considered  opinion,  required  grant  of  maintenance  from  the  date   of
application and by so granting the High Court has not  committed  any  legal
infirmity.  Hence, we concur with the order of the High Court.  However,  we
direct, as prayed by the learned counsel for the respondent, that he may  be
allowed to pay the arrears along with the maintenance awarded at present  in
a phased manner.  Learned counsel for the appellant did not object  to  such
an arrangement being made.  In view of the aforesaid, we direct  that  while
paying the maintenance as fixed by the learned Family Court Judge per  month
by  5th  of  each  succeeding  month,  the  arrears  shall  be  paid  in   a
proportionate manner within a period of three years from today.


Consequently, the appeal, being devoid of merits, stands dismissed.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41767

            IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1331 OF 2014
             (Arising out of S.L.P. (Criminal) No. 1565 of 2013)


Bhuwan Mohan Singh                      … Appellant

                                   Versus

Meena & Ors.                                   …Respondent






                               J U D G M E N T

Dipak Misra, J.

      Leave granted.

The two issues  that  pronouncedly emanate in this appeal by  special  leave
are whether the Family Court while deciding an application under Section   7
of the Family Court Act, 1984   (for  brevity,  “the  Act”)  which  includes
determination of grant of maintenance  to  the  persons  as  entitled  under
that provision,  should allow adjournments in an  extremely  liberal  manner
remaining  oblivious  of objects and reasons of the  Act  and  also  keeping
the windows of wisdom  closed  and  the  sense  of  judicial  responsiveness
suspended  to  the  manifest  perceptibility   of   vagrancy,   destitution,
impecuniosity, struggle for survival and the  emotional  fracture,   a  wife
likely to face under these circumstances  and  further  exhibiting  absolute
insensitivity to her condition, who, after loosing support  of  the  husband
who has failed to husband  the  marital  status  denies  the  wife  to  have
maintenance for almost nine years as that much time is  consumed  to  decide
the lis and, in addition, to restrict the grant of maintenance to  the  date
of order on some kind of individual notion.   Both  the  approaches,  as  we
perceive, not only defeat the command of the legislature but also  frustrate
the hope of wife and children who are deprived of  adequate  livelihood  and
whose aspirations perish like mushroom and  possibly  the  brief  candle  of
sustenance  joins  the  marathon  race  of  extinction.    This   delay   in
adjudication by the Family Court is not only against human rights  but  also
against the basic embodiment of dignity of an individual.

Be it ingeminated that Section 125 of the Code of  Criminal  Procedure  (for
short “the Code”) was conceived to ameliorate the agony, anguish,  financial
suffering of a woman who left her matrimonial home for the reasons  provided
in the provision so that some suitable  arrangements  can  be  made  by  the
Court and she can sustain herself and also her children  if  they  are  with
her.  The concept of sustenance does not necessarily mean to lead  the  life
of an animal, feel like an unperson to be thrown away from  grace  and  roam
for her basic maintenance somewhere else.  She is entitled in law to lead  a
life in the similar manner as she would have  lived  in  the  house  of  her
husband.  That is where the status and strata come into play,  and  that  is
where the obligations of the husband, in case of a wife, become a  prominent
one.  In a proceeding of this nature, the husband  cannot  take  subterfuges
to deprive her of the benefit of living with dignity.  Regard being  had  to
the solemn pledge at the time of marriage and also in  consonance  with  the
statutory law that governs the field, it is the obligation  of  the  husband
to see that the wife does not become a destitute, a beggar.  A situation  is
not to be maladroitly created whereunder she is compelled to resign  to  her
fate and think of life “dust unto dust”.  It is totally  impermissible.   In
fact, it is the sacrosanct duty to render the financial support even if  the
husband is required to earn money  with  physical  labour,  if  he  is  able
bodied.  There is no escape route unless there is an order  from  the  Court
that the wife is not entitled to get maintenance from  the  husband  on  any
legally permissible grounds.

Presently to the facts  which  lie  in  an  extremely  small  compass.   The
marriage between the appellant and the husband was solemnized on  27.11.1997
as per Hindu rites and ritual,  and  in  the  wedlock  a  son  was  born  on
16.12.1998.  The respondent, under certain circumstances, had to  leave  the
marital home and thereafter filed an application on 28.8.2002 under  Section
125 of the Code  in the Family Court, Jaipur, Rajasthan, claiming  Rs.6000/-
per month towards maintenance.  The Family Court finally decided the  matter
on 24.8.2011 awarding monthly maintenance of Rs.2500/-  to  the  respondent-
wife and Rs.1500/- to the second respondent-son.  Be it stated,  during  the
continuance of the Family Court proceedings,  number  of  adjournments  were
granted, some taken by the husband and some by the wife. The learned  Family
Judge being dissatisfied with the material brought on record  came  to  hold
that the respondent-wife  was  entitled  to  maintenance  and,  accordingly,
fixed the quantum and directed that the maintenance  to  be  paid  from  the
date of the order.

Being dissatisfied with the aforesaid order  the  respondent-wife  preferred
S.B. Criminal Revision Petition No. 1526 of 2011 before the  High  Court  of
Judicature at Rajasthan and the  learned  single  Judge,  vide  order  dated
28.5.2012, noted the contention of the  wife  that  the  maintenance  should
have been granted from the date of application, and that  she  had  received
nothing during the  proceedings  and  suffered  immensely  and,  eventually,
directed that the maintenance should be granted from the date of  filing  of
the application.

Criticizing the aforesaid order,  it  is  submitted  Mr.  Jay  Kishor  Singh
learned counsel for the appellant that  when  number  of  adjournments  were
sought by the wife, grant of maintenance from the  date  of  filing  of  the
application by the High Court is absolutely illegal and unjustified.  It  is
his submission that the wife cannot take advantage of her own wrong.

Ms. Ruchi Kohli, learned counsel for the respondents would submit  that  the
Family Court adjourned the matter sometimes on  its  own  and  the  enormous
delay  took  place  because  of  non-cooperation  of  the  husband  in   the
proceedings and, therefore, the wife who was compelled  to  sustain  herself
and her son with immense difficulty should not be allowed to suffer.  It  is
proponed by her that the High Court by modifying  the  order  and  directing
that the maintenance should be granted  from  the  date  of  filing  of  the
application has not committed any legal infirmity and hence,  the  order  is
inexceptionable.

At the outset, we are obliged to  reiterate  the  principle  of  law  how  a
proceeding under Section 125 of the Code has to be dealt with by the  court,
and what is the duty of a Family Court after establishment  of  such  courts
by the  Family  Courts  Act,  1984.   In  Smt.  Dukhtar  Jahan  v.  Mohammed
Farooq[1], the Court opined that proceedings under Section 125 of the  Code,
it must be remembered, are of a summary nature and are  intended  to  enable
destitute wives and children, the latter  whether  they  are  legitimate  or
illegitimate, to get maintenance in a speedy manner.

A three-Judge Bench in Vimla (K.) v. Veeraswamy  (K.)[2],  while  discussing
about the basic purpose under Section 125 of the Code, opined  that  Section
125 of the Code is meant to achieve a social  purpose.   The  object  is  to
prevent vagrancy and destitution.  It  provides  a  speedy  remedy  for  the
supply of food, clothing and shelter to the deserted wife.

A two-Judge Bench  in  Kirtikant  D.  Vadodaria  v.  State  of  Gujarat  and
another[3], while adverting to the dominant purpose behind  Section  125  of
the Code, ruled that:

“While dealing with the ambit  and  scope  of  the  provision  contained  in
Section 125 of the Code, it has to be borne in mind that  the  dominant  and
primary object is to give social justice to  the  woman,  child  and  infirm
parents etc. and to prevent destitution and  vagrancy  by  compelling  those
who can support those who are unable to support themselves but have a  moral
claim for support. The provisions in Section 125 provide a speedy remedy  to
those women, children  and  destitute  parents  who  are  in  distress.  The
provisions in Section 125 are intended to achieve this special purpose.  The
dominant purpose behind the benevolent provisions contained in  Section  125
clearly is that the wife,  child  and  parents  should  not  be  left  in  a
helpless state of distress, destitution and starvation.”

In Chaturbhuj v. Sita Bai[4],  reiterating  the  legal  position  the  Court
held: -

“Section 125 CrPC is a measure of social justice and  is  specially  enacted
to protect women and children and as noted by this Court in  Captain  Ramesh
Chander Kaushal v. Veena Kaushal[5] falls  within  constitutional  sweep  of
Article 15(3) reinforced by Article 39 of the Constitution of India.  It  is
meant to achieve a social purpose. The object is  to  prevent  vagrancy  and
destitution. It provides a speedy remedy for the supply  of  food,  clothing
and shelter to the deserted wife. It gives effect to fundamental rights  and
natural duties of a man to maintain his  wife,  children  and  parents  when
they  are  unable  to  maintain  themselves.  The  aforesaid  position   was
highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat[6].”

Recently in Nagendrappa Natikar v. Neelamma[7], it has been stated  that  it
is a piece of social legislation which provides for  a  summary  and  speedy
relief by way of maintenance to a wife who is  unable  to  maintain  herself
and her children.


The Family Courts have been established for adopting  and  facilitating  the
conciliation procedure and to deal with family  disputes  in  a  speedy  and
expeditious manner.  A three-Judge  Bench  in  K.A.  Abdul  Jaleel  v.  T.A.
Shahida[8], while highlighting on the purpose  of  bringing  in  the  Family
Courts Act by the legislature, opined thus: -


“The Family Courts Act was enacted  to  provide  for  the  establishment  of
Family Courts with a view to promote  conciliation  in,  and  secure  speedy
settlement of, disputes relating to marriage  and  family  affairs  and  for
matters connected therewith.”


The purpose of highlighting this aspect is that in  the  case  at  hand  the
proceeding before the Family Court was conducted without being alive to  the
objects and reasons of the Act  and  the  spirit  of  the  provisions  under
Section 125 of the Code.  It is unfortunate  that  the  case  continued  for
nine years before the Family Court.  It has come to the notice of the  Court
that on certain occasions the Family Courts have been granting  adjournments
in a routine manner as a consequence of which both the  parties  suffer  or,
on certain occasions, the wife  becomes  the  worst  victim.   When  such  a
situation occurs, the purpose  of  the  law  gets  totally  atrophied.   The
Family Judge is expected to be sensitive to the issues, for  he  is  dealing
with extremely delicate and sensitive issues pertaining to the marriage  and
issues ancillary thereto.  When we say this, we do not mean that the  Family
Courts should show undue haste or impatience, but  there  is  a  distinction
between impatience and to be wisely  anxious  and  conscious  about  dealing
with  a  situation.   A  Family  Court  Judge  should  remember   that   the
procrastination is the greatest assassin of the lis before it.  It not  only
gives rise to more family problems but  also  gradually  builds  unthinkable
and Everestine bitterness.  It  leads  to  the  cold  refrigeration  of  the
hidden feelings, if still left.  The delineation of the lis  by  the  Family
Judge must reveal the awareness and balance.  Dilatory  tactics  by  any  of
the parties has to be sternly dealt with, for the Family Court Judge has  to
be alive to  the  fact  that  the  lis  before  him  pertains  to  emotional
fragmentation and delay can feed it to grow.  We hope  and  trust  that  the
Family Court Judges shall remain alert to this and  decide  the  matters  as
expeditiously as possible keeping in view the objects  and  reasons  of  the
Act  and  the  scheme  of  various  provisions  pertaining   to   grant   of
maintenance, divorce, custody of child, property disputes, etc.


While dealing with the relevant date  of  grant  of  maintenance,  in  Shail
Kumari  Devi  and  another  v.  Krishan  Bhagwal  Pathak  alias  Kishun   B.
Pathak[9], the Court referred to the Code of Criminal Procedure  (Amendment)
Act, 2001 (Act 50 of 2001) and came to hold that even  after  the  amendment
of 2001, an order for payment of maintenance can be paid by a  court  either
from the date of order or when express order  is  made  to  pay  maintenance
from the date of application, then the amount of  maintenance  may  be  paid
from that date, i.e., from the date of application. The  Court  referred  to
the decision in Krishna Jain v. Dharam Raj  Jain[10]  wherein  it  has  been
stated that to hold that, normally maintenance should be made  payable  from
the date of the order and not from the date of the application  unless  such
order is backed by reasons would amount to inserting something more  in  the
sub-section which the  legislature  never  intended.   The  High  Court  had
observed that it was unable to read in sub-section (2) laying down any  rule
to award maintenance from the date of the order or that the grant  from  the
date of the application is an exception.  The High  Court  had  also  opined
that whether maintenance is granted from the date of the order or  from  the
date of application, the Court is required to  record  reasons  as  required
under sub-section (6) of Section 354 of the Code.  After  referring  to  the
decision in Krishna Jain (supra), the Court adverted to the decision of  the
High Court of Andhra Pradesh in K. Sivaram v. K. Mangalamba[11]  wherein  it
has been ruled that the maintenance would be awarded from the  date  of  the
order  and  such  maintenance  could  be  granted  from  the  date  of   the
application only by recording special reasons.   The  view  of  the  learned
single Judge of the High Court of  Andhra  Pradesh  stating  that  it  is  a
normal rule that the Magistrate should grant maintenance only from the  date
of the order and not from the date of the application  for  maintenance  was
not accepted by this Court.  Eventually, the Court ruled thus: -

“43. We, therefore, hold that while deciding an  application  under  Section
125 of the Code, a Magistrate is required to record reasons for granting  or
refusing  to  grant  maintenance  to  wives,  children  or   parents.   Such
maintenance can be awarded from the date of the order, or,  if  so  ordered,
from the date of the application for maintenance, as the case  may  be.  For
awarding maintenance from the date of  the  application,  express  order  is
necessary. No special reasons, however, are required to be recorded  by  the
court. In our judgment, no such requirement can be read in  sub-section  (1)
of Section 125 of the Code in absence of express provision to that effect.”

In the present case, as we find, there was enormous  delay  in  disposal  of
the proceeding under Section 125 of the  Code  and  most  of  the  time  the
husband had taken adjournments and some  times  the  court  dealt  with  the
matter showing total laxity.  The wife  sustained  herself  as  far  as  she
could in that state for a period of nine years.  The circumstances,  in  our
considered  opinion,  required  grant  of  maintenance  from  the  date   of
application and by so granting the High Court has not  committed  any  legal
infirmity.  Hence, we concur with the order of the High Court.  However,  we
direct, as prayed by the learned counsel for the respondent, that he may  be
allowed to pay the arrears along with the maintenance awarded at present  in
a phased manner.  Learned counsel for the appellant did not object  to  such
an arrangement being made.  In view of the aforesaid, we direct  that  while
paying the maintenance as fixed by the learned Family Court Judge per  month
by  5th  of  each  succeeding  month,  the  arrears  shall  be  paid  in   a
proportionate manner within a period of three years from today.


Consequently, the appeal, being devoid of merits, stands dismissed.



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



                                             .............................J.
                                                           [V. Gopala Gowda]
New Delhi;
July 15, 2014.














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[1]    (1987) 1 SCC 624
[2]    (1991) 2 SCC 375
[3]    (1996) 4 SCC 479
[4]    (2008) 2 SCC 316
[5]    (1978) 4 SCC 70
[6]    (2005) 3 SCC 636
[7]    2013 (3) SCALE 561
[8]    (2003) 4 SCC 166
[9]    (2008) 9 SCC 632
[10]   1992 Cri LJ 1028 (MP)
[11]   1990 Cri LJ 1880 (AP)


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