LAW FOR ALL

Monday, January 5, 2015

SPECIAL LEAVE PETITION (C) NO…28195-28196 OF 2014 (CC NO.1707 OF 2014) RAUNAQ EDUCATION FOUNDATION ..... PETITIONER VERSUS STATE OF HARYANA & ORS. ..... RESPONDENTS

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO…28189 OF 2014
(CC NO.2940 OF 2014)

WITH

SPECIAL LEAVE PETITION (C) NO…28195-28196 OF 2014
(CC NO.1707 OF 2014)

RAUNAQ EDUCATION FOUNDATION ..... PETITIONER

VERSUS

STATE OF HARYANA & ORS. ..... RESPONDENTS

O R D E R

ADARSH KUMAR GOEL, J.

1. Delay condoned. Heard on merits.
2. These petitions have been preferred against the Judgment and Order
dated 27th September, 2013 passed in LPA No.1687 of 2013, Order dated 16th
September, 2013 passed in LPA No.1618 of 2013 and Order dated 16th
December, 2013 passed in RA LP No.133 of 2013 in LPA No.1618 of 2013 by the
High Court of Punjab and Haryana at Chandigarh, upholding the order of the
learned Single Judge, declining to interfere with the Order of the
Government of Haryana dated
18th September, 1998, resuming land measuring 76 acres 5 kanals and 5
marlas, except land measuring 7 acres left to be retained by the petitioner
foundation.
3. The case of the petitioner is that it gave a proposal on 1st
April, 1972 to start a educational complex for the benefit of the residents
of the State of Haryana. Accordingly, the State of Haryana released
76 acres of land from the Forest Department and acquired the same under the
Land Acquisition Act, 1894 vide notifications dated
15th May, 1972 and 28th August, 1972 under Sections 4 and 6 respectively.
Award for compensation was given on 21st February, 1973. Possession was
delivered to the petitioner on 24th January, 1974 subject to certain
conditions including the requirement to make construction within the
specific time. Since the land was not utilized as expected, in terms of
agreement dated 18th February, 1988 under which the land was given to the
petitioner subject to certain conditions, the Village Panchayat sought
return of the land by passing a resolution dated 20th October, 1989. On
that basis, after due enquiry, resumption Order dated 18th September, 1998
came to be finally passed after various proceedings holding that the
petitioner failed to comply with the conditions subject to which land was
given to it. It was held that the petitioner failed to utilize the land
for the purpose for which it was given, except a part of it.
4. The petitioner called in question the said order by filing a writ
petition. Learned single Judge, after due consideration, did not find any
merit in the contentions raised on behalf of the petitioner. It was
observed :
“It is appropriate to notice that actual running of the school was the
primary consideration of the State of Haryana in allotting 76 acres of land
to the foundation. The petitioners have not produced any documents in
regard to admission of children, the year in which the admissions were
started, the classes in which the admissions were made, the number of
children admitted in a particular class, the number of faculty members,
their date of appointment, qualifications etc. and above all the
performance of the school children in academics or extracurricular
activities. It is also doubtful if the school had been affiliated with any
educational board. I have no hesitation to hold that the petitioners have
intentionally withheld this information as revelation thereof would
completely shake their tall claim to start an educational institutions, one
of the best in the area to impart quality education.

Admittedly, the petitioners did not start construction of stated third
phase by the time, they filed the petition. The joint inspection was
conducted in October/November 1997. A Local Commissioner was appointed by
this Court in August 1999. Shri Sanjeev Sharma, Local Commissioner
inspected the site in the presence of the petitioners and made a detailed
report in compliance with order dated 16.08.1999. The petitioners have not
challenged the correctness of this report with regard to extent of
construction. The joint inspection, in no circumstances, could reveal
something more than what is contained in the report of the Local
Commissioner. Under these circumstances, the supply or non-supply of joint
inspection report also loses its significance. In other words, no
prejudice has been caused to the petitioners for want of supply of joint
inspection report.

The petitioners have tried to justify their failure to complete the project
for want of adequate funds due to financial difficulties of their funding
sources. The possession of land was delivered in January 1974. The
foundation should have shown keenness to complete the project at the
earliest. It remained silent for 12 years. Thereafter also, it did not
complete the project within three years of entering into agreement in
February 1988. The plea of inadequacy of funds more than 25 years after
their approaching the State of Haryana for allotment of land cannot hold
ground. Rather the foundation should have, on its own, surrendered the
land to the State of Haryana if it was not able to complete the project due
to inadequacy of funds.
……………
The State of Haryana acquired more than 76 acres of land belonging to the
Gram Panchayat, Village Bari. The Gram Panchayat’s land necessarily
denotes land meant for common purposes of the village. The people of the
village have been deprived of the benefits of this common land due to a
false promise made by the foundation. As the foundation utterly failed to
achieve the object for which the Gram Panchayat was deprived of land of its
ownership, no fault can be found in the decision of the State Government.
Rather, the officer who passed the impugned order has taken a very liberal
and reasonable view of the matter and left 7 acres of land at the disposal
of foundation, though the entire land could be resumed. In view of the
above, the contention of the petitioners that the impugned order is
vitiated for want of supply of documents, joint inspection report or an
opportunity of personal hearing is devoid of merit and is accordingly
rejected. Similarly, the other plea that resumption order could not be
passed in the circumstances of the present case is untenable.

Before parting with this order, it is appropriate to mention that the land
resumed by the impugned order has been re-vested in the Gram Panchayat. A
mutation has been sanctioned in favour of the Gram Panchayat, which has
been challenged in CWP No.13676 of 2007. The land after resumption would
now be available for common benefit of the villagers.

As an upshot of the discussion made hereinabove, the foundation is guilty
of using the land for personal gain, failed to complete construction in
compliance with terms and conditions of the agreement even uptill 1999 and
further defaulted in proving true to its promise/representation made to the
State as back as in the year 1972, rather deprived the villagers of huge
land meant for their common benefits, therefore, in my considered opinion,
allowing the prayer of the petitioners would amount to putting premium on
their failures. The petitioners, therefore, cannot be held entitled to
relief in exercise of jurisdiction under Article 226 of the Constitution of
India.”

5. The Division Bench after thorough consideration reiterated the
above findings as follows :
“19. Thus, from the reading of the said affidavit also, which
had been filed on 26.08.2012, nothing has been brought on record to show
that any such utilization has been done regarding the setting up of an
educational complex. The affidavit only pertains to the efforts made
regarding the administration of the school and does not talk about
utilization of the huge chunk of land for any further expansion for the
purpose of setting of an educational complex. The site plan which has
been attached alongwith the said affidavit goes on to show that there is a
proposed boys and girls hostel to be set up, a proposed Apollo Institute of
Management and Studies. Thus, the submission of the counsel for the
appellants that in pursuance of the interim order passed, the Foundation
had complied with the terms of the allotment, is also without any basis.
The observations of the Learned Single Judge that the objects for which the
land was acquired were not met and the Gram Panchayat was deprived of its
ownership due to the false promise made by the Foundation for brining
education to the residents of the State of Haryana, are absolutely
justified.

20. Another factor which is to be taken into consideration is that in
pursuance of the resumption, the Gram Panchayat had also submitted a bank
draft of 2,76,548/- vide letter dated 16.10.1998, regarding the cost of the
land which had been resumed and in pursuance of which, mutation had also
been entered in favour of the Gram Panchayat. As per the written statement
of respondent No.5 – Gram Panchayat, the said amount had been accepted by
the appellants and they had taken possession. No replication to the
written statement, filed by respondent No.5 – Gram Panchayat, was filed and
thus, the Trust has also retained the said amount for all this period.

21. Accordingly, there is no infirmity or illegality in the order of
the Learned Single Judge, upholding the resumption, which would warrant
interference in appeal. The present appeal is, accordingly, dismissed in
limine.”

6. When the matter came up before this Court on 24th February, 2014,
the following order was passed :
“In the meantime, the petitioner may file additional affidavit indicating
how much area of the land is still an open land and what are the nature of
construction which have been done by the petitioner after allotment of the
land.”

The affidavit filed in pursuance of the above order was not found
to be satisfactory and on 11th April, 2014, the following order was passed
:
“Counsel for the petitioner is directed to file a better affidavit within a
period of one week explaining as to how the area which has been alleged not
have been used by the petitioner for the school purposes have been utilized
and also whether the construction was undertaken after the interim order
was passed by the High Court.”

7. We have heard Shri Kapil Sibal, learned senior counsel for the
petitioner.
8. He submitted that the petitioner is ready and willing to construct
and run a school for 500 poor and under privileged children of the area at
its cost, within the time frame as may be laid down and subject to
appropriate conditions. The petitioner will bear the education cost, fees
etc. of such poor and under privileged children for all times to come.
9. We have bestowed our serious consideration to the proposal put
forward. Though any proposal for advancement of poor and under privileged
children is welcome but the background of the matter noticed above shows
the track record of the petitioner which renders the proposal suspect and
in any case land allowed to be retained being enough if the petitioner
wishes to carry out the proposal now given, no ground is made out to
interfere with the impugned order. The petitioner took prime land of the
State and failed to comply with the conditions on which the land was
allotted, for a long time. Accordingly, the land stands resumed by the
State of Haryana and as per order of the High Court, the land stands re-
vested in the Gram Panchayat. Mutation has also been sanctioned in favour
of the Gram Panchayat and the land is to be used for the benefit of the
villagers.
10. As already noted, the High Court has duly examined all aspects of
the matter. On orders of the High Court, an Advocate Commissioner
inspected the site in the presence of representative of the petitioner, who
reported that in the area marked “X” no construction was made, as claimed.
This report was not even challenged by the petitioner. Having taken huge
track of prime public land in the name of advancing the cause of education,
it failed to act as per the agreement and put forward the specious plea of
lack of funds. The people of the village were deprived of the benefit of
the common land due to false promise of the petitioner. Still, 7 acres of
land has been allowed to be retained by the petitioner. If the petitioner
wants to serve poor and under privileged children as now proposed, it is
free to do so on this part of the said land.
11. We also find that the Division Bench considered the contention
that construction was raised during pendency of proceedings. It was found
that interim order dated 14th May, 2001 permitting construction was subject
to result of the writ petition. Moreover, even thereafter no proper
utilization of land was shown to have been made, though the brochure of
school painted a rosy picture. Thus, the track record of the petitioner
is to take private benefit from land of the village, taken over by the
State at petitioner’s instance to advance education – a public cause. Such
individual and private benefit at the cost of public cannot be permitted
and is contrary to constitutional values to be followed by the State of
advancing welfare of the society. A finding of fact has been recorded by
the competent authority about the failure of the petitioner to carry out
the terms and conditions of allotment which finding has been duly upheld,
concurrently by the learned Single Judge and the Division Bench. Thus,
public interest will not in any manner be advanced by interference by this
Court on a mere offer to serve poor children when track record of the
petitioner has been to advance individual interest at the cost of the
village.
12. We have not been able to discern as to why forest land was
acquired, if such land was already vested in the Government. There is
nothing to show that the requisite permission was taken for converting
forest land for non forest purposes. In B L Wadhera vs. Union of
India[1], this Court considered the validity of gifting of the village
common land for a hospital to Shri Chandra Shekhar, former Prime Minister.
Quashing the said decision, this Court observed :
“41. Once the land was found to have been used for the purposes of forest,
the provisions of the Indian Forest Act and the Forest Conservation Act
would be attracted, putting restrictions on dereservation of the forest or
use of the land for non-forest purposes. The Forest Conservation Act, 1980
has been enacted with the object of preventing deforestation. The
provisions of the aforesaid Act are applicable to all forests. It is true
that “forest” has not been defined under the Act but this Court in T.N.
Godavarman Thirumulkpad v. Union of India1 has held that the word “forest”
must be understood according to its dictionary meaning. It would cover all
statutorily recognised forest whether designated as reserved, protected or
otherwise for the purposes of Section 2(i) of the Forest Conservation Act.
The term “forest land” occurring in Section 2 will include not only the
forest as understood in the dictionary sense but also any area regarded as
forest in the government record irrespective of the ownership. The
provisions of the Forest Conservation Act are applicable to all forests so
understood irrespective of the ownership or classification thereof. This
Court has issued certain directions and guidelines for the preservation of
forest and its produce in T.N. Godavarman case1 which are not shown to have
been implemented by the respondent State.

[pic]42. Section 2 of the Forest Conservation Act mandates that no State
Government or authority shall make an order directing that any forest land
or any portion thereof shall cease to be reserved or any forest land or any
portion thereof may be used for non-forest purposes or forest land or any
portion thereof may be assigned by way of lease or otherwise to any private
person or to an authority, corporation, agency or any other organisation
owned and controlled by the Government or any such land or portion thereof
be cleared of trees which have grown therein — without the prior approval
of the Central Government. The gifting of land, in the instant case,
cannot, in any way, be termed to be for a forest purpose. Learned counsel
appearing for the State of Haryana showed us a government order which had
declared the area, covered by gift deeds, as forest prohibiting the cutting
of the trees, declared as forest though for a limited period of 25 years.
It is submitted that as the period of 25 years was not extended, the land,
earlier declared as forest, had ceased to be a forest land. Such a plea is
contradictory in terms. The State of Haryana is proved to be conscious of
the fact that the land, intended to be gifted, was either the forest land
or property of the Forest Department regarding which condition 6 was
imposed in its order granting the approval for gifting the land by the Gram
Panchayat to the Trust. It is too late now in the day for the respondent
State to urge that as notification declaring the land as forest was not
extended after initial period of 25 years, the same be deemed to not be a
forest land or land used for the purpose of the forest. In the affidavit
filed on behalf of the respondents it is specifically stated:
“It is submitted that the State Government had only given approval to the
Gram Panchayat for gifting the land. However, while permitting the Gram
Panchayat to gift the land by way of abundant precaution, the State
Government had imposed the condition to the effect that the land in
question be got released from the Forest Department in accordance with law.
The permission given by State Government did not mean at all that the donee
or the donor was authorised in any way to divert the user of land in
question.”

The contradictory pleas taken and stands adopted by the respondent State
strengthens the argument of the petitioner that the transaction of making
the gifts in favour of Respondent 7 is actuated by considerations other
than those specified under the Act and the Rules made thereunder.

43. Learned counsel, appearing for Respondent 7, has submitted that as the
land is being utilised for the purpose of the Trust and Shri Chandra
Shekhar is not taking any advantage from the said land, the action
initiated by way of public interest litigation is not sustainable. There is
no doubt that the land has not been utilised by Respondent 7 for any
commercial purpose but it is equally true that the land is being utilised
for purposes other than those contemplated under the Act and the Rules made
thereunder for which the gift was approved to be made by the Gram Panchayat
in favour of Respondent 7. We are not impressed with the argument of
Respondent 7 that the gifted land was acquired for the purposes of welfare
of the people and the [pic]upliftment of the inhabitants of the Gram
Panchayat. The land appears to be utilised for the personal leisure and
pleasure of some individuals including the Chairman of Respondent 7 which
cannot be termed to be used for the upliftment of the poor and the
oppressed as claimed. It cannot be disputed that in this country the
position of the rural poor is worst. According to an assessment about
2/3rds of the rural population which consists of farm workers, small and
marginal farmers, poor artisans and the unemployed agricultural labourers
are possessed of 15 to 20% of the total available land. The number of
owners of land with less than 0.2 hectares is about 29 million. When
millions of landless agriculturists are struggling to get some land for
feeding their families and protecting their lives, Respondent 7 has
manoeuvred to usurp about 600 acres of land, apparently for not any public
purpose. It is unimaginable that for the construction of a three-room
dispensary, Respondent 7 would require and the Gram Panchayat as also the
State of Haryana would oblige by conferring State largesse of about 271
kanals of land. The shocking facts of the case further disclose that even
this three-room dispensary has not been built on the land in controversy.
For a reasonable person, as Respondent 7 is presumed to be, the aforesaid
land should have been returned to the Gram Panchayat after public
controversy had risen culminating in the filing of the present writ
petition in public interest. This Court cannot remain a silent spectator
where people’s property is being usurped for the personal leisure and
pleasure of some individuals under the self-created legal, protective
umbrella and name of a trust. A politician of the stature of Shri Chandra
Shekhar cannot claim to minimise the sufferings of the people by
constituting the Trust and utilising the lands taken by it allegedly for
the upliftment of the poor and the oppressed. The purpose of the respondent
Trust may be laudable but under the cloak of those purposes the property of
the people cannot be permitted to be utilised for the aforesaid objectives,
particularly when the law mandates the utilisation of the transferred
property in a specified manner and for the benefit of the inhabitants of
the area, the poor and oppressed and the Scheduled Castes and Backward
Classes. We are not impressed with any of the pleas raised on behalf of
Respondent 7 that the land was acquired bona fide for the proclaimed object
of upliftment of the people of this country in general and of the area in
particular. We fail to understand as to how the country can be uplifted by
personal adventures of constituting trusts and acquiring hundreds of acres
of lands for the purposes of that Trust. It is nothing except seeking
personal glorification of the persons concerned.”

13. We cannot lose sight of above observations in view of the fact
that we are dealing with the issue of allocation of public land to a
private entity which requires fair, transparent and non arbitrary exercise
of power in the light of mandate of Article 14 read with Articles 39 (b)
and (c) of the Constitution. Once it is found that beneficiary of such
allotment has abused its position to its advantage and to the disadvantage
of the public, this Court cannot interfere with the fair order passed by a
competent authority resuming the land.
14. Thus, the proposal put forward cannot be taken at its face value
and cannot be the basis for interfering with the impugned orders. The land
has to be utilised by the competent authority in a transparent manner as
per applicable policy and law.
The special leave petitions are dismissed.

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

.….………………………………..J.
NEW DELHI [ ADARSH KUMAR GOEL ]
October 14, 2014

-----------------------
[1]

(2002) 9 SCC 108

CRIMINAL APPEAL Nos. 2199-2201 OF 2014 (Arising out of SLP (Crl.) Nos.1730-1732 of 2011) R.N.Agarwal ……Appellant Versus R.C. Bansal and others ……Respondents

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTON

CRIMINAL APPEAL Nos. 2199-2201 OF 2014
(Arising out of SLP (Crl.) Nos.1730-1732 of 2011)

R.N.Agarwal ……Appellant

Versus

R.C. Bansal and others ……Respondents

J U D G M E N T

M.Y. EQBAL, J.

Leave granted.

2. These appeals are directed against the judgment and order dated
2.2.2011 passed by the High Court of Delhi in Crl.M.C. Nos.2955 and 3779 of
2009 and Crl.Rev.No. 575 of 2009, whereby the High Court of Delhi while
quashing the order dated 10th July, 2009 of the Special Judge, CBI Court
Rohini, allowed aforesaid Section 482 criminal petitions filed by the
alleged culprits and Section 397 criminal revision of the Investigating
Officer.
3. The brief facts of the case are that in the year 1983, a Society
named Maharani Avanti Bai Co-operative Society was formed and from time to
time members were enrolled by its Managing Committee. Upto the year 1989
there were 90 members of the Society and thereafter further enrolment of
members was stopped. However, no land was allotted to the Society for many
years and in the meantime its members became disinterested in the running
of the Society as the cost of the flats to be constructed had gone very
high and beyond their reach. The society thus became dormant.

4. Some persons who were not members of the Society but were far-sighted
and clever minded became interested to take over its management and got the
land allotted from Delhi Development Authority (in short, ‘DDA’) to be
utilized for the benefits of their own persons. They forged certain records
of the Society to show that many of the original members of the Society had
resigned and a new Managing Committee had been constituted. By forged
resignation letters of the original members of the Society, new members
were shown to have been enrolled and the forged records were submitted in
the office of the Registrar of Co-operative Societies after entering into
some kind of criminal understanding with the officials in that office. It
is alleged that based on the forged documents, which included minutes
purporting to be of the illegally constituted Managing Committee of the
Society comprising of all new members and also of General Body Meetings
which were never held, DDA was approached for allotment of land with the
assistance rendered by the Registrar of Co-operative Societies by
certifying that all the meetings were duly held and a list of new members
of the Society was forwarded to DDA. Accepting the same, DDA allotted a
plot measuring 600 sq. meters to the Society in Dwarka for the benefit of
the 90 members of the Society in the year 1998. All these facts emerged
during the investigation by CBI.

5. On completion of the investigation, the CBI filed a charge-sheet in
the Court of Special Judge against six persons, out of whom two were public
servants while other four were the members of the bogus Managing Committee
of the Society, who had taken over the dormant Society by resorting to
forgery etc.

6. The Special Judge, CBI vide order dated 23rd July, 2008, after
perusing the material submitted by the CBI, took cognizance of the offences
punishable under Section 120-B, 420, 468 and 471 of the Indian Penal Code
(in short, ‘IPC’) as well as Section 13(1)(d) of the Prevention of
Corruption Act, and ordered summoning of six persons who had been named by
the CBI in its charge-sheet as accused persons alleged to have committed
the offences in conspiracy with each other. After all the accused persons
entered appearance, the Special Judge furnished them copies of all the
documents as per the requirement of Section 207 of the Code of Criminal
Procedure and, thereafter, the matter was adjourned to 9th March, 2009.
However, before the next date of hearing, accused R.N. Aggarwal moved an
application under Section 190 read with Section 193 Cr.P.C. before the
Special Judge for summoning three more persons, namely, Madan Sharma (PW-
21), Ms. Sujata Chauhan (PW-23) and R.C. Bansal (PW-30) as accused, who had
been cited by the CBI as its witnesses. The learned Special Judge kept
that application for consideration on 9th March, 2009. However, on that day
the matter was adjourned to 5th May, 2009 for arguments on charge without
mentioning anything about the application which had been moved by the
accused R.N. Aggarwal. Special Judge heard arguments on that application
on 5th June, 2009 and then by order dated 10th July, 2009 allowed that
application and summoned the prosecution witnesses Madan Sharma, Sujata
Chauhan and R.C. Bansal and also directed the Director of CBI to get a case
registered against the Investigating Officer of the case under Section 217,
IPC for letting off these three persons.

7. Aggrieved by order dated 10th July, 2009, prosecution witnesses
Sujata Chauhan and R.C. Bansal (respondents herein) approached the High
Court by filing separate petitions under Section 482, Cr.P.C. read with
Article 227 of the Constitution of India. CBI, feeling aggrieved by the
direction given by the Special Judge in the impugned order for registration
of a criminal case against the investigating officer, also approached the
High Court by way of a revision petition.

8. Learned Single Judge of the High Court, while considering the order
passed by the Special Judge, held that the case is squarely covered by the
decision of the Delhi High Court in the case of Anirudh Sen vs. State,
(2006) 3 JCC 2081 (Delhi), and consequently quashed the order passed by the
Special Judge.

9. Mr. Ajit Kumar Sinha, learned senior counsel appearing for the
appellant assailed the impugned order passed by the High Court as being
illegal and wholly without jurisdiction. Learned counsel submitted that the
learned single Judge of the High Court relied upon the decision of Delhi
High Court in Anirudh Sen’s case (supra), which followed the ratio decided
by this Court in Raj Kishore Prasad vs. State of Bihar, (1996) 4 SCC 495,
and held that the Magistrate has no jurisdiction to summon the persons
shown in column 4 of the charge-sheet. Mr. Sinha, learned counsel further
submitted that a Constitution Bench of this Court in the case of Dharam Pal
vs. State of Haryana, (2014) 3 SCC 306, after considering various
judgments overruled the decision rendered in Raj Kishore Prasad’s case
(supra). Learned counsel submitted that the Magistrate is empowered to
summon other accused persons even before the examination of witnesses. Mr.
Sinha also relied upon another Constitution Bench decision of this Court in
Hardeep Singh vs. State of Punjab, (2014) 3 SCC 92, and submitted that the
Constitution Bench agreed with the view taken in Dahram Pal’s case (supra).

10. Mr. Basava Prabhu Patil, learned senior counsel appearing for the
respondent, on the other hand submitted that once cognizance was taken by
the Magistrate, it has no jurisdiction to summon the persons shown in
column 4 of the charge-sheet. Learned counsel submitted that the ratio
decided by the Constitution Bench in Dharam Pal’s case is not applicable in
the facts of the present case.

11. Mr. Pradeep K. Ghose, learned counsel appearing for the respondent
no.8, relied on the decision rendered in A.R.Antuley vs. Ramdas Srinivas
Nayak, (1984) 2 SCC 500, and submitted that in the case pending before the
Special Judge, Section 193 of the Code will not be attracted and it has no
role to play.

12. Mr. Atul Chitley, learned senior counsel appearing for C.B.I.,
contended that the CBI has acted in a bona fide manner and, therefore, the
observations made by the Special Judge and directions issued to register
the case against the officers does not arise.

13. We have considered the submissions made by the learned counsel
appearing for the parties.

14. In Anirudh Singh’s case (supra), charge-sheet was filed showing the
petitioner in column 2 as there was no material available against the
petitioner. The Magistrate summoned only those accused shown in column 4
of the charge-sheet. The successor Magistrate, however, later on summoned
persons, including petitioner, who were shown in column 2 of the charge-
sheet. The High Court fully relied upon the decision of this Court in Raj
Kishore Prasad case (supra) and held that the Magistrate had no
jurisdiction to summon the petitioner of that case since no new
material/evidence had been collected in the course of trial.

15. In Raj Kishore Prasad’s case, this Court came to the conclusion that
power under Section 209, Cr.P.C. to summon a new offender was not vested
with the Magistrate on the plain reading of its text as well as proceedings
before him not being an ‘inquiry’ and the material before him not being
‘evidence’. The question considered by this Court was whether the
undertaking under Section 209, Cr.P.C. of a case triable by a Court of
Sessions, associate another person as an accused in exercise of power under
Section 319 of the Code or any other provision of Cr.P.C. Answering the
question this Court held as under:-

“16. Thus we come to hold that the power under Section 209 CrPC to summon a
new offender was not vested with a Magistrate on the plain reading of its
text as well as proceedings before him not being an ‘inquiry’ and material
before him not being ‘evidence’. When such power was not so vested, his
refusal to exercise it cannot be corrected by a Court of Revision, which
may be the Court of Session itself awaiting the case on commitment, merely
on the specious ground that the Court of Session can, in any event, summon
the accused to stand trial, along with the accused meant to be committed
for trial before it. Presently it is plain that the stage for employment of
Section 319 CrPC has not arrived. The order of the Court of Session
requiring the Magistrate to arrest and logically commit the appellant along
with the accused proposed to be committed to stand trial before it, is
patently illegal and beyond jurisdiction. Since the Magistrate has no such
power to add a person as accused under Section 319 CrPC when handling a
matter under Section 209 CrPC, the Court of Session, in purported exercise
of revisional powers cannot obligate it to do so. The question posed at the
outset is answered accordingly in this light. When the case comes after
commitment to the Court of Session and evidence is recorded, it may then in
exercise of its powers under Section 319 CrPC on the basis of the evidence
recorded by it, if circumstances warranting, proceed against the appellant,
summon him for the purpose, to stand trial along with the accused
committed, providing him the necessary safeguards envisaged under sub-
section (4) of Section 319. Such course is all the more necessary in the
instant case when expressions on merit have extensively been made in the
orders of the Magistrate, the Court of Session and that of the High Court.
Any other course would cause serious prejudice to the appellant. We order
accordingly.”

16. In the case of Kishun Singh and Others vs. State of Bihar, (1993) 2
SCC 16, a Division Bench of this Court was considering the question as to
whether a Court of Sessions, to which a case is committed for trial by a
Magistrate, without itself recording evidence, summon a person not named in
the police report presented under Section 173 Cr.P.C. to stand trial along
with those already named therein, in exercise of power conferred by Section
319 of the Code. While answering the question this Court considered
various provisions of the Code and came to the following conclusion:-

“13. The question then is whether de hors Section 319 of the Code, can
similar power be traced to any other provision in the Code or can such
power be implied from the scheme of the Code? We have already pointed out
earlier the two alternative modes in which the Criminal Law can be set in
motion; by the filing of information with the police under Section 154 of
the Code or upon receipt of a complaint or information by a Magistrate. The
former would lead to investigation by the police and may culminate in a
police report under Section 173 of the Code on the basis whereof cognizance
may be taken by the Magistrate under Section 190(1)(b) of the Code. In the
latter case, the Magistrate may either order investigation by the police
under Section 156(3) of the Code or himself hold an inquiry under Section
202 before taking cognizance of the offence under Section 190(1)(a) or (c),
as the case may be, read with Section 204 of the Code. Once the Magistrate
takes cognizance of the offence he may proceed to try the offender (except
where the case is transferred under Section 191) or commit him for trial
under Section 209 of the Code if the offence is triable exclusively by a
Court of Session. As pointed out earlier cognizance is taken of the offence
and not the offender. This Court in Raghubans Dubey v. State of Bihar
stated that once cognizance of an offence is taken it becomes the Court’s
duty ‘to find out who the offenders really are’ and if the Court finds
‘that apart from the persons sent up by the police some other persons are
[pic]involved, it is its duty to proceed against those persons’ by
summoning them because ‘the summoning of the additional accused is part of
the proceeding initiated by its taking cognizance of an offence’. Even
after the present Code came into force, the legal position has not
undergone a change; on the contrary the ratio of Dubey case was affirmed in
Hareram Satpathy v. Tikaram Agarwala. Thus far there is no difficulty.

14. We have now reached the crucial point in our journey. After cognizance
is taken under Section 190(1) of the Code, in warrant-cases the Court is
required to frame a charge containing particulars as to the time and place
of the alleged offence and the person (if any) against whom, or the thing
(if any) in respect of which, it was committed. But before framing the
charge Section 227 of the Code provides that if, upon a consideration of
the record of the case and the documents submitted therewith, the Sessions
Judge considers that there is not sufficient ground for proceeding against
the accused, he shall, for reasons to be recorded, discharge the accused.
It is only when the Judge is of opinion that there is ground for presuming
that the accused has committed an offence that he will proceed to frame a
charge and record the plea of the accused (vide Section 228). It becomes
immediately clear that for the limited purpose of deciding whether or not
to frame a charge against the accused, the Judge would be required to
examine the record of the case and the documents submitted therewith, which
would comprise the police report, the statements of witnesses recorded
under Section 161 of the Code, the seizure-memoranda, etc., etc. If, on
application of mind for this limited purpose, the Judge finds that besides
the accused arraigned before him the complicity or involvement of others in
the commission of the crime prima facie surfaces from the material placed
before him, what course of action should he adopt?

16. We have already indicated earlier from the ratio of this Court’s
decisions in the cases of Raghubans Dubey and Hareram that once the court
takes cognizance of the offence (not the offender) it becomes the court’s
duty to find out the real offenders and if it comes to the conclusion that
besides the persons put up for trial by the police some others are also
involved in the commission of the crime, it is the court’s duty to summon
them to stand trial along with those already named, since summoning them
would only be a part of the process of taking cognizance. We have also
pointed out the difference in the language of Section 193 of the two Codes;
under the old Code the Court of Session was precluded from taking
cognizance of any offence as a court of original jurisdiction unless the
accused was committed to it whereas under the present Code the embargo is
diluted by the replacement of the words the accused by the words the case.
Thus, on a plain reading of Section 193, as it presently stands once the
case is committed to the Court of Session by a Magistrate under the Code,
the restriction placed on the power of the Court of Session to take
cognizance of an offence as a court of original jurisdiction gets lifted.
On the Magistrate committing the case under Section 209 to the Court of
Session the bar of Section 193 is lifted thereby investing the Court of
Session complete and unfettered jurisdiction of the court of original
jurisdiction to take cognizance of the offence which would include the
summoning of the person or persons whose complicity in the commission of
the crime can prima facie be gathered from the material available on
record. The Full Bench of the High Court of Patna rightly appreciated the
shift in Section 193 of the Code from that under the old Code in the case
of Sk. Lutfur Rahman as under:
“Therefore, what the law under Section 193 seeks to visualise and provide
for now is that the whole of the incident constituting the offence is to be
taken cognizance of by the Court of Session on commitment and not that
every individual offender must be so committed or that in case it is not so
done then the Court of Session would be powerless to proceed against
persons regarding whom it may be fully convinced at the very threshold of
the trial that they are prima facie guilty of the crime as well …. Once the
case has been committed, the bar of Section 193 is removed or, to put it in
other words, the condition [pic]therefore stands satisfied vesting the
Court of Session with the fullest jurisdiction to summon any individual
accused of the crime.”
We are in respectful agreement with the distinction brought out between the
old Section 193 and the provision as it now stands.”

17. The ratio laid down in Kishun Singh’s case (supra) and Raj Kishore’s
Prasad’s case (supra) came for consideration before a three Judge Bench of
this Court in the case of Ranjit Singh vs. State of Punjab, (1998) 7 SCC
149. Disapproving the judgment in Kishun Singh’s case (supra), the Full
Bench of this Court relied upon Raj Kishore Prasad’s case (supra), and held
:-

“19. So from the stage of committal till the Sessions Court reaches the
stage indicated in Section 230 of the Code, that court can deal with only
the accused referred to in Section 209 of the Code. There is no
intermediary stage till then for the Sessions Court to add any other person
to the array of the accused.
20. Thus, once the Sessions Court takes cognizance of the offence pursuant
to the committal order, the only other stage when the court is empowered to
add any other person to the array of the accused is after reaching evidence
collection when powers under Section 319 of the Code can be invoked. We are
unable to find any other power for the Sessions Court to permit addition of
new person or persons to the array of the accused. Of course it is not
necessary for the court to wait until the entire evidence is collected for
exercising the said powers.
xxxxxxx
24. For the foregoing reasons, we find it difficult to support the
observations in Kishun Singh case that powers of the Sessions Court under
Section 193 of the Code to take cognizance of the offence would include the
summoning of the person or persons whose complicity in the commission of
the trial can prima facie be gathered from the materials available on
record.”

18. A similar matter came for consideration before a three Judge Bench of
this Court in Dharam Pal Singh’s case (supra) since the conflicting view
expressed by this Court in Ranjit Singh’ case and Kishun Singh’s case, the
matter was referred to the Constitution Bench of this Court. The question
has now been finally set at rest by the Constitution Bench in Dharam Pal
Singh’s case, (2014) 3 SCC 306.

19. The Constitution Bench has overruled the ratio decided in Ranjit
Singh’s case (supra) and Raj Kishore Prasad’s case and held that the ratio
laid down in Kishun Singh’s case (supra) has been correctly decided. The
Constitution Bench held as under:-

“34. The view expressed in Kishun Singh case, in our view, is more
acceptable since, as has been held by this Court in the cases referred to
hereinbefore, the Magistrate has ample powers to disagree with the final
report that may be filed by the police authorities under Section 173(2) of
the Code and to proceed against the accused persons dehors the police
report, which power the Sessions Court does not have till the Section 319
stage is reached. The upshot of the said situation would be that even
though the Magistrate had powers to disagree with the police report filed
under Section 173(2) of the Code, he was helpless in taking recourse to
such a course of action while the Sessions Judge was also unable to proceed
against any person, other than the accused sent up for trial, till such
time evidence had been adduced and the witnesses had been cross-examined on
behalf of the accused.[pic]

35. In our view, the Magistrate has a role to play while committing the
case to the Court of Session upon taking cognizance on the police report
submitted before him under Section 173(2) CrPC. In the event the Magistrate
disagrees with the police report, he has two choices. He may act on the
basis of a protest petition that may be filed, or he may, while disagreeing
with the police report, issue process and summon the accused. Thereafter,
if on being satisfied that a case had been made out to proceed against the
persons named in column 2 of the report, proceed to try the said persons or
if he was satisfied that a case had been made out which was triable by the
Court of Session, he may commit the case to the Court of Session to proceed
further in the matter.
xxxxxxxxxxx
39. This takes us to the next question as to whether under Section 209, the
Magistrate was required to take cognizance of the offence before committing
the case to the Court of Session. It is well settled that cognizance of an
offence can only be taken once. In the event, a Magistrate takes
[pic]cognizance of the offence and then commits the case to the Court of
Session, the question of taking fresh cognizance of the offence and,
thereafter, proceed to issue summons, is not in accordance with law. If
cognizance is to be taken of the offence, it could be taken either by the
Magistrate or by the Court of Session. The language of Section 193 of the
Code very clearly indicates that once the case is committed to the Court of
Session by the learned Magistrate, the Court of Session assumes original
jurisdiction and all that goes with the assumption of such jurisdiction.
The provisions of Section 209 will, therefore, have to be understood as the
learned Magistrate playing a passive role in committing the case to the
Court of Session on finding from the police report that the case was
triable by the Court of Session. Nor can there be any question of part
cognizance being taken by the Magistrate and part cognizance being taken by
the learned Sessions Judge.

40. In that view of the matter, we have no hesitation in agreeing with the
views expressed in Kishun Singh case that the Sessions Court has
jurisdiction on committal of a case to it, to take cognizance of the
offences of the persons not named as offenders but whose complicity in the
case would be evident from the materials available on record. Hence, even
without recording evidence, upon committal under Section 209, the Sessions
Judge may summon those persons shown in column 2 of the police report to
stand trial along with those already named therein.”

20. In another Constitution Bench judgment in Hardeep Singh vs. State of
Punjab, (2014) 3 SCC 92, this Court while discussing the powers of the
Court concurred with the view taken in Dharam Pal’s case and observed as
under:-
“53. It is thus aptly clear that until and unless the case reaches the
stage of inquiry or trial by the court, the power under Section 319 CrPC
cannot be exercised. In fact, this proposition does not seem to have been
disturbed by the Constitution Bench in Dharam Pal (CB). The dispute therein
was resolved visualising a situation wherein the court was concerned with
procedural delay and was of the opinion that the Sessions Court should not
necessarily wait till the stage of Section 319 CrPC is reached to direct a
person, not facing trial, to appear and face trial as an accused. We are in
full agreement with the interpretation given by the Constitution Bench that
Section 193 CrPC confers power of original jurisdiction upon the Sessions
Court to add an accused once the case has been committed to it.

54. In our opinion, the stage of inquiry does not contemplate any evidence
in its strict legal sense, nor could the legislature have contemplated this
inasmuch as the stage for evidence has not yet arrived. The only material
that the court has before it is the material collected by the prosecution
and the court at this stage prima facie can apply its mind to find out as
to whether a person, who can be an accused, has been erroneously omitted
from being arraigned or has been deliberately excluded by the prosecuting
agencies. This is all the more necessary in order to ensure that the
investigating and the prosecuting agencies have acted fairly in bringing
before the court those persons who deserve to be tried and to prevent any
person from being deliberately shielded when they ought to have been tried.
This is necessary to usher faith in the judicial system whereby the court
should be empowered to exercise such powers even at the stage of inquiry
and it is for this reason that the legislature has consciously used
separate terms, namely, inquiry or trial in Section 319 CrPC.”

21. The Constitution Bench further answered the question as under:-
“117.1. In Dharam Pal case, the Constitution Bench has already held that
after committal, cognizance of an offence can be taken against a person not
named as an accused but against whom materials are available from the
papers filed by the police after completion of the investigation. Such
cognizance can be taken under Section 193 Cr.PC and the Sessions Judge need
not wait till “evidence” under Section 319 CrPC becomes available for
summoning an additional accused.
117.2. Section 319 Cr.PC, significantly, uses two expressions that have to
be taken note of i.e. (1) inquiry (2) trial. As a trial commences after
framing of charge, an inquiry can only be understood to be a pre-trial
inquiry. Inquiries under Sections 200, 201, 202 CrPC, and under Section 398
Cr.PC are species of the inquiry contemplated by Section 319 CrPC.
Materials coming before the court in course of such inquiries can be used
for corroboration of the evidence recorded in the court after the trial
commences, for the exercise of power under Section 319 Cr.PC, and also to
add an accused whose name has been shown in Column 2 of the charge-sheet.

117.3. In view of the above position the word “evidence” in Section 319
CrPC has to be broadly understood and not literally i.e. as evidence
brought during a trial.

117.4. Considering the fact that under Section 319 CrPC a person against
whom material is disclosed is only summoned to face the trial and in such
an [pic]event under Section 319(4) CrPC the proceeding against such person
is to commence from the stage of taking of cognizance, the court need not
wait for the evidence against the accused proposed to be summoned to be
tested by cross-examination.”

22. As noticed above, after completion of investigation, CBI filed charge-
sheet in the Court of Special Judge to deal with the cases in the
Prevention of Corruption Act, as also under the Indian Penal Code. The
procedure and the powers of the Special Judge have been prescribed in
Section 5 of the said Act. For better appreciation, Section 5 of the Act is
reproduced hereinbelow:-
“5. Procedure and powers of special Judge.—
(1) A special Judge may take cognizance of offences without the accused
being committed to him for trial and, in trying the accused persons, shall
follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2
of 1974), for the trial of warrant cases by the Magistrates.
(2) A special Judge may, with a view to obtaining the evidence of any
person supposed to have been directly or indirectly concerned in, or privy
to, an offence, tender a pardon to such person on condition of his making a
full and true disclosure of the whole circumstances within his knowledge
relating to the offence and to every other person concerned, whether as
principal or abettor, in the commission thereof and any pardon so tendered
shall, for the purposes of sub-sections (1) to (5) of section 308 of the
Code of Criminal Procedure, 1973 (2 of 1974), be deemed to have been
tendered under section 307 of that Code.
(3) Save as provided in sub-section (1) or sub-section (2), the provisions
of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as they
are not inconsistent with this Act, apply to the proceedings before a
special Judge; and for purposes of the said provisions, the Court of the
special Judge shall be deemed to be a Court of Session and the person
conducting a prosecution before a special Judge shall be deemed to be a
public prosecutor.
(4) In particular and without prejudice to the generality of the provisions
contained in sub-section (3), the provisions of sections 326 and 475 of the
Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be,
apply to the proceedings before a special Judge and for the purposes of the
said provisions, a special Judge shall be deemed to be a Magistrate.
(5) A special Judge may pass upon any person convicted by him any sentence
authorised by law for the punishment of the offence of which such person is
convicted.
(6) A special Judge, while trying an offence punishable under this Act,
shall exercise all the powers and functions exercisable by a District Judge
under the Criminal Law Amendment Ordinance, 1944 (Ord. 38 of 1944).”

23. A bare reading of the provision would show that the special judge may
take cognizance of the offence without the accused being committed to him
for trial and the court of special judge shall be deemed to be a court of
session. The special judge in trying the accused persons shall follow the
procedure prescribed by the Code of Criminal Procedure, 1973 for the trial
of warrant cases by the Magistrate. Indisputably, a person holding the
post of either a Sessions Judge, Additional Sessions Judge or Assistant
Sessions Judge is appointed as Special Judge and shall follow the procedure
prescribed in the Code for trial of warrant cases.

24. The constitution Bench in the case of A.R. Antuley (supra), was of
the view that the special judge appointed under the Prevention of
Corruption Act, enjoys all powers conferred on the Court of original
jurisdiction functioning under the High Court except those specifically
conferred under the Act. The Bench observed :-

“27……..While setting up a Court of a Special Judge keeping in view the fact
that the high dignitaries in public life are likely to be tried by such a
court, the qualification prescribed was that the person to be appointed as
Special Judge has to be either a Sessions Judge, Additional Sessions Judge
or Assistant Sessions Judge. These three dignitaries are above the level of
a Magistrate. After prescribing the qualification, the Legislature
proceeded to confer power upon a Special Judge to take cognizance of
offences for the trial of which a special court with exclusive jurisdiction
was being set up. If a Special Judge has to take cognizance of offences,
ipso facto the procedure for trial of such offences has to be prescribed.
Now the Code prescribes different procedures for trial of cases by
different courts. Procedure for trial of a case before a Court of Session
is set out in Chapter XVIII; trial of warrant cases by Magistrates is set
out in Chapter XIX and the provisions therein included catered to both the
types of cases coming before the Magistrate, namely, upon police report or
otherwise than on a police report. Chapter XX prescribes the procedure for
trial of summons cases by Magistrates and Chapter XXI prescribes the
procedure for summary trial. Now that a new criminal court was being set
up, the Legislature took the first step of providing its comparative
position in the hierarchy of courts under Section 6 CrPC by bringing it on
level more [pic]or less comparable to the Court of Session, but in order to
avoid any confusion arising out of comparison by level, it was made
explicit in Section 8(1) itself that it is not a Court of Session because
it can take cognizance of offences without commitment as contemplated by
Section 193 CrPC. Undoubtedly in Section 8(3) it was clearly laid down that
subject to the provisions of sub-sections (1) and (2) of Section 8, the
Court of Special Judge shall be deemed to be a Court of Session trying
cases without a jury or without the aid of assessors.”

25. In the case of Harshad S. Mehta vs. State of Maharashtra, (2001) 8
SCC 257, the Bench while dealing with the case under the Special Court
(Trial of Offences Relating to Transactions in Securities) Act, 1992
observed that special court is a Court of exclusive jurisdiction in respect
of offences under Section 3(2) of the Act, like special court under
Prevention of Corruption Act it has original criminal jurisdiction. The
special court per se is not a Magistrate and also it is not a court to
which the commitment of a case is made.
26. In the case of State of T.N. vs. V. Krishnaswami Naidu, (1979) 4 SCC
5, this Court while answering a question, as to whether the special judge
under the Criminal Law (Amendment) Act, 1952 can exercise the power
conferred on a Magistrate under Section 167 Cr.P.C. to authorise the
detention of the accused in the custody of police, held that a special
judge is empowered to take cognizance of the offence without the accused
being committed to him for trial. Their Lordship observed:-
“5. It may be noted that the Special Judge is not a Sessions Judge,
Additional Sessions Judge or an Assistant Sessions Judge under the Code of
Criminal Procedure though no person can be appointed as a Special Judge
unless he is or has been either a Sessions Judge or an Additional Sessions
Judge or an Assistant Sessions Judge. The Special Judge is empowered to
take cognizance of the offences without the accused being committed to him
for trial. The jurisdiction to try the offence by a Sessions Judge is only
after committal to him. Further the Sessions Judge does not follow the
procedure for the trial of warrant cases by Magistrates. The Special Judge
is deemed to be a Court of Session only for certain purposes as mentioned
in Section 8(3) of the Act while the first part of sub-section 3 provides
that except as provided in sub-sections (1) and (2) of Section 8 the
provisions of the Code of Criminal Procedure, 1898 shall, so far as they
are not inconsistent with this Act, apply to the proceedings before the
Special Judge.”

27. In the case of Raghubans Dubey vs. State of Bihar, AIR 1967 SC 1167,
this Court while dealing with the similar matter held that once cognizance
has been taken by the Magistrate, he takes cognizance of an offence and not
the offenders and once he comes to the conclusion that apart from the
persons sent by the police some other persons are involved, it is his duty
to proceed against those persons. The summoning of the additional accused
is part of the proceeding initiated by his taking cognizance of an offence.
28. In the case of Kishun Singh vs. State of Bihar (supra), the scope and
power of a Court under Sections 193, 209 and 319 observed as:-
“16. We have already indicated earlier from the ratio of this Court’s
decisions in the cases of Raghubans Dubey and Hareram that once the court
takes cognizance of the offence (not the offender) it becomes the court’s
duty to find out the real offenders and if it comes to the conclusion that
besides the persons put up for trial by the police some others are also
involved in the commission of the crime, it is the court’s duty to summon
them to stand trial along with those already named, since summoning them
would only be a part of the process of taking cognizance. We have also
pointed out the difference in the language of Section 193 of the two Codes;
under the old Code the Court of Session was precluded from taking
cognizance of any offence as a court of original jurisdiction unless the
accused was committed to it whereas under the present Code the embargo is
diluted by the replacement of the words the accused by the words the case.
Thus, on a plain reading of Section 193, as it presently stands once the
case is committed to the Court of Session by a Magistrate under the Code,
the restriction placed on the power of the Court of Session to take
cognizance of an offence as a court of original jurisdiction gets lifted.
On the Magistrate committing the case under Section 209 to the Court of
Session the bar of Section 193 is lifted thereby investing the Court of
Session complete and unfettered jurisdiction of the court of original
jurisdiction to take cognizance of the offence which would include the
summoning of the person or persons whose complicity in the commission of
the crime can prima facie be gathered from the material available on
record. The Full Bench of the High Court of Patna rightly appreciated the
shift in Section 193 of the Code from that under the old Code in the case
of Sk. Lutfur Rahman as under:
“Therefore, what the law under Section 193 seeks to visualise and provide
for now is that the whole of the incident constituting the offence is to be
taken cognizance of by the Court of Session on commitment and not that
every individual offender must be so committed or that in case it is not so
done then the Court of Session would be powerless to proceed against
persons regarding whom it may be fully convinced at the very threshold of
the trial that they are prima facie guilty of the crime as well …. Once the
case has been committed, the bar of Section 193 is removed or, to put it in
other words, the condition [pic]therefore stands satisfied vesting the
Court of Session with the fullest jurisdiction to summon any individual
accused of the crime.”
We are in respectful agreement with the distinction brought out between the
old Section 193 and the provision as it now stands.”

29. The order passed by the Special Judge would show that while issuing
summons against the respondents the Court has considered in detail the
material brought on record during investigation. We would like to refer
some of the paragraphs, which are quoted hereinbelow:-
“14. During investigation. It was also revealed that Sh. Ram Narain
Aggarwal got procured the various false documents in order to regularize
the society fraudulently, which was submitted to the office of the RCS. The
details of the documents are as follows:-
Proceedings of general body meetings dated 15-11-1998 and 23-01-2000.
Proceedings register having proceedings with effect from 22-11-1998.
Membership register having members numbers 101 onwards.
15. Proceedings of General Body Meeting (GBM) dated 15-11-1998 which shown
to be held in the office of the society at 303. 3rd Floor, C-50, Vasant
Tower Community Centre, Janak Puri where the approval of resignation of 46
members and enrollment of 35 new members during the period of 1996-97 by
the managing committee was falsely shown. Similarly, proceeding of GBM
dated 23-01-2000 falsely show approval of regisnation of 10 promoter
members by the managing committee. In that GBM, false election of managing
committee was shown to be conducted, in which, Sh. OP Aggarwal- the
President, Sh. Anil Kumar Sharma- Vice President and all other members of
the managing committee of the society, whose name are Sh. R.N. Aggarwal,
Ms. Sujata Chauhan, Sh. Sudhir Aggarwal, Sh. CL Bansal and Ms. Janak are
shown to be elected by showing conducting false elections of the management
committee. The signature of Sh. Sudhir Aggarwal is forged on these
proceedings of GBM dated 15-11-1998, 23-1-2000 which are written by Ms.
Sujata on the instance of Sh. RN Aggarwal.
16. It was also revealed that Sh. MIshri Lal Lodhi and Sh. Bhupinder Kumar,
the then president and secretary of the society respectively had never
approved the resignation of the promoter members and enrollment of new
members during the year 1996-97 as shown in GBM dated 15-11-1998.
17. After obtaining demand letter dated 21-9-1998 from DDA, a post letter
dated 2-11-1998 under the signature of SH. Bhupinder Kumar, Secretary of
the society was submitted fraudulently to the commissioner (Housing), DDA,
New Delhi, whereby more time was sought for making payment.
18. Investigation further revealed that Sh. RN Aggarwal in pursuance of
criminal consipray with Sh. Bhim Singh Mahur fraduently obtained a letter
dated 15-11-1998 signed by Sh. Mishri Lal (President), Sh. Bhupinder Kumar
(Secretary) and Smt. Kela Devi (Treasurer) and sent the same to the
Manager, Delhi State Cooperative Bank Ltd., Dariya Ganj, New Delhi falsely
stated therein that Sh. Anil Kumar Sharma, Sh. RN Aggarwal and Sh. Om
Prakash Aggarwal have been elected as President, Secretary and Treasurer
respectively in the new Managing Committee of the said society and the said
office bearer have been authorized to operate the bank accounts of the said
society and this way all the above named accused had fraudulently taken
over control of the operation of the bank account of the said society.
xxxxxxx
20. Investigation further revealed that Sh. Ganesh Jha, a promoter
member of the society lodged complaints dated 26.6.2000 and 5.10.2000 to
the office of RCS, New Delhi alleging therein that the society had not
intimated him for allotment of land by DDA nor demanded his share of
contribution towards costs of land and he suspected that the Secretary
fraudulently manipulated the membership register. The society has secretly
shifted the registered office without holding any meeting of the members,
nor called him to attend any meeting of the society with some ulterior
motive.

21. It is also revealed in the investigation that Sh. Leela Krishan Seth
appointed Sh. Jafar Iqbal for conducting verification on the allotments
made in the complaints who gave a false verification report at the behest
of Sh. R.N. Aggarwal in which he fraudulently certified that election were
satisfactorily held by society on 15.11.98 and facilitated dishonestly the
accused persons by giving them clean chit to the society.

22. Investigation also disclosed that person to the aforesaid criminal
conspiracy Leela Krishna Seth the then Assistant Registrar, Sh. Jafar
Iqbal, the then Inspector Grade-III by abusing their official position by
entering into criminal conspiracy with sh. R. N. Aggarwal and Sh. O.P.
Aggarwal with the intention to cheat DDA got allotment and possession of
land from DDA in favour of the society.”

30. The Special Judge considering all those materials brought on record
during investigation and relying upon the decisions of this Court in the
case of M/s Swill Ltd. vs. State of Delhi and Anr., (2001) 6 SCC 670; Nisar
and Another vs. State of U.P., (1995) 2 SCC 23;1995 Crl LJ 2118; Kishan
Singh vs. State of Bihar (supra); Raghubans Dubey vs. State of Bihar,
(1967) 2 SCR 423, came to the conclusion that the respondents are involved
in the commission of offence and consequently summons were issued against
them.
31. While passing the impugned order the High Court instead of relying on
the decisions of this Court reversed the order passed by the Special Judge
by following the decision of the Single Judge of the Delhi High Court in
Anirudh Sen’s Case (supra). Prima facie, therefore, the impugned order
passed by the High Court quashing issuance of summons by the Special Judge
against the respondents is erroneous in law and cannot be sustained.
However, at this stage it was not necessary for the Special Judge to issue
directions to CBI to get a case registered against the guilty officers who
have investigated the case.
32. For the reasons aforesaid, we allow these appeals and quash the order
passed by the High Court and restore the order passed by the Special Judge
except the direction issued to the CBI as indicated above.

…………………………….J.
[ M.Y. Eqbal ]

.…………………………….J
[Pinaki Chandra Ghose]
New Delhi
October 14, 2014

CIVIL APPEAL NO. 6862 OF 2014 [Arising out of S.L.P. (C) No. 6757 of 2012) Rajni Rani & Anr. ... Appellants Versus Khairati Lal & Ors. ...Respondents

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6862 OF 2014
[Arising out of S.L.P. (C) No. 6757 of 2012)

Rajni Rani & Anr. ... Appellants

Versus

Khairati Lal & Ors. ...Respondents

J U D G M E N T

Dipak Misra, J.

The centrirorial issue that has stemmed in this appeal by grant of special
leave is whether an order of dismissal of the counter-claim being barred by
principles of Order 2, Rule 2 of the Code of Civil Procedure (C.P.C.) can
be set aside in exercise of revisional jurisdiction under Section 115 of
the C.P.C. or in exercise of power of superintendence under Article 227 of
the Constitution of India or is it required to be assailed by preferring an
appeal.
The factual score need not be exposited in detail. Suffice it to state
that one Phoolan Rani, wife of Om Prakash, and another instituted Civil
Suit No. 107B of 2003 seeking a declaration that they are the owners in
possession of the land admeasuring 1/9th share in the suit land and further
praying for permanent injunction against the defendants. After issue of
notice, the defendants entered contest and the defendant Nos.12 to 14 filed
a counter-claim putting forth that they had the right, title and interest
as the original owner, Jeth Ram, had executed a Will dated 18.5.1995 in
their favour.
After the counter-claim was filed, defendant Nos. 1 and 2 filed an
application for dismissal of the counter-claim on the foundation that the
same did not merit consideration as it was barred by Order 2, Rule 2 of
C.P.C. It was set forth in the application that a suit for declaration was
earlier filed by the present appellants along with others against the
defendants and a decree was passed in their favour on 21.9.2002 whereby it
was held that the present appellants and some of the respondents were
entitled to 1/4th share each. The judgment and decree passed in the said
suit was assailed in appeal and the appellate court modified the judgment
and decree dated 21.9.2002 vide judgment dated 15.2.2003 holding that each
one of them was entitled to 1/9th share and the said modification was done
on the ground that the property was ancestral in nature and the sisters had
their shares. After disposal of the appeal, one of the sisters filed a
declaratory suit to the effect that she is the owner in possession of land
in respect of 1/9th share in the suit land and in the said suit a counter-
claim was filed by defendant Nos. 12 to 14 stating that they had become
owners in possession of the suit property on the basis of a properly
registered Will dated 18.5.1995 executed by Jeth Ram. In the application it
was set forth that the counter-claim had been filed in collusion with the
plaintiff as the plea of claiming any status under the Will dated 18.5.1995
was never raised in the earlier suit. It was urged that the plea having
not been raised in the earlier suit, it could not have been raised by way
of a counter-claim in the second suit being barred by the principles of
Order 2, Rule 2 of C.P.C.
The learned trial Judge adverted to the lis in the first suit, the factum
of not raising the plea with regard to Will in the earlier suit and came to
hold that the counter-claim could not be advanced solely on the ground that
the existence of the Will had come to the knowledge of the defendants only
in the year 2003. Being of this view, the learned trial Judge allowed the
application filed by the defendant Nos. 1 and 2 and resultantly dismissed
the counter-claim filed by the defendant Nos. 12 to 14 vide order dated
13.10.2010.
The legal substantiality of the aforesaid order was called in question in
Civil Revision No. 900 of 2011 preferred under Article 227 of the
Constitution of India wherein the High Court taking note of the previous
factual background came to hold that the learned trial Judge had failed to
appreciate that the Will dated 18.5.1995 executed by Jeth Ram, the father
of defendant Nos. 12 to 14, was alive at the time of adjudication of the
earlier suit and hence, the said Will could not have taken aid of during
his lifetime. The aforesaid analysis persuaded the learned Single Judge to
set aside the order passed by the learned trial Judge. However, the Single
Judge observed that it would be open to the plaintiff to raise all pleas
against the counter-claim.
We have heard Mr. Arvinder Arora, learned counsel for the appellants and
Mr. S.S. Nara, learned counsel for the respondents.
7. At the very outset, we must make it clear that we are not inclined to
advert to the defensibility or justifiability of the order of rejection of
the counter-claim by the learned trial Judge or the annulment or
invalidation of the said order by the High Court. We shall only dwell upon
the issue whether the revision petition could have been entertained or was
it obligatory on the part of respondents herein to assail the order by way
of appeal.
8. The submission of Mr. Arora, learned counsel appearing for the
appellants is that the counter-claim is in the nature of a plaint and when
it is dismissed it has to be assailed by way of appeal before the competent
forum by paying the requisite court fee on the basis of the claim and such
an order cannot be set at naught in exercise of supervisory jurisdiction of
the High Court. Learned counsel for the respondents, per contra, would
contend that such an order is revisable and, in any case, when cause of
justice has been subserved this Court should not interfere in exercise of
its jurisdiction under Article 136 of the Constitution of India.
9. To appreciate the controversy in proper perspective it is imperative
to appreciate the scheme relating to the counter-claim that has been
introduced by CPC (amendment) Act 104 of 1976 with effect from 1.2.1977.
Order 8, Rule 6A deals with counter-claim by the defendant. Rule 6A(2)
stipulates thus:-
“(2) Such counter-claim shall have the same effect as a cross-suit so as to
enable the Court to pronounce a final judgment in the same suit, both on
the original claim and on the counter-claim.”

10. Rule 6A(3) enables the plaintiff to file a written statement. The
said provision reads as follows:-
“(3) The plaintiff shall be at liberty to file a written statement in
answer to the counter-claim of the defendant within such period as may be
fixed by the Court.”

11. Rule 6A(4) of the said Rule postulates that the counter-claim shall
be treated as a plaint and governed by rules applicable to a plaint. Rule
6B provides how the counter-claim is to be stated and Rule 6C deals with
exclusion of counter-claim. Rules 6D deals with the situation when the
suit is discontinued. It is as follows:-
“R. 6D. Effect of discontinuance of suit. – If in any case in which the
defendant sets up a counter-claim, the suit of the plaintiff is stayed,
discontinued or dismissed, the counter-claim may nevertheless be proceeded
with.”

12. On a plain reading of the aforesaid provisions it is quite limpid
that a counter-claim preferred by the defendant in a suit is in the nature
of a cross-suit and by a statutory command even if the suit is dismissed,
counter-claim shall remain alive for adjudication. For making a counter-
claim entertainable by the court, the defendant is required to pay the
requisite court fee on the valuation of the counter-claim. The plaintiff
is obliged to file a written statement and in case there is default the
court can pronounce the Judgment against the plaintiff in relation to the
counter-claim put forth by the defendant as it has an independent status.
The purpose of the scheme relating to counter-claim is to avoid
multiplicity of the proceedings. When a counter-claim is dismissed on
being adjudicated on merits it forecloses the rights of the defendant. As
per Rule 6A(2) the court is required to pronounce a final judgment in the
same suit both on the original claim and also on the counter-claim. The
seminal purpose is to avoid piece-meal adjudication. The plaintiff can
file an application for exclusion of a counter-claim and can do so at any
time before issues are settled in relation to the counter-claim. We are
not concerned with such a situation.
13. In the instant case, the counter-claim has been dismissed finally by
expressing an opinion that it is barred by principles of Order 2, Rule 2 of
the CPC. The question is what status is to be given to such an expression
of opinion. In this context we may refer with profit the definition of the
term decree as contained in section 2(2) of CPC:-
“(2) “decree” means the formal expression of an adjudication which, so far
as regards the Court expressing it, conclusively determines the rights of
the parties with regard to all or any of the matters in controversy in the
suit and may be either preliminary or final. It shall be deemed to include
the rejection of a plaint and the determination of any question within [1][
* * *] Section 144, but shall not include –
any adjudication from which an appeal lies as an appeal from an order, or
any order of dismissal for default.

Explanation- A decree is preliminary when further proceedings have to be
taken before the suit can be completely disposed of. It is final when such
adjudication completely disposes of the suit. It may be partly preliminary
and partly final;”

14. In R. Rathinavel Chettiar and Another v. V. Sivaraman and Others[2]
dealing with the basic components of a decree, it has been held thus:-
“10. Thus a “decree” has to have the following essential elements, namely:

There must have been an adjudication in a suit.

The adjudication must have determined the rights of the parties in
respect of, or any of the matters in controversy.

Such determination must be a conclusive determination resulting in a formal
expression of the adjudication.
[pic]
11. Once the matter in controversy has received judicial determination, the
suit results in a decree either in favour of the plaintiff or in favour of
the defendant.”

15. From the aforesaid enunciation of law, it is manifest that when there
is a conclusive determination of rights of parties upon adjudication, the
said decision in certain circumstances can have the status of a decree. In
the instant case, as has been narrated earlier, the counter-claim has been
adjudicated and decided on merits holding that it is barred by principle of
Order 2, Rule 2 of C.P.C. The claim of the defendants has been negatived.
In Jag Mohan Chawla and Another v. Dera Radha Swami Satsang and Others[3]
dealing with the concept of counter-claim, the Court has opined thus:-
“... is treated as a cross-suit with all the indicia of pleadings as a
plaint including the duty to aver his cause of action and also payment of
the requisite court fee thereon. Instead of relegating the defendant to an
independent suit, to avert multiplicity of the proceeding and needless
protection (sic protraction), the legislature intended to try both the suit
and the counter-claim in the same suit as suit and cross-suit and have them
disposed of in the same trial. In other words, a defendant can claim any
right by way of a counter-claim in respect of any cause of action that has
accrued to him even though it is independent of the cause of action averred
by the plaintiff and have the same cause of action adjudicated without
relegating the defendant to file a separate suit.”

16. Keeping in mind the conceptual meaning given to the counter-claim and
the definitive character assigned to it, there can be no shadow of doubt
that when the counter-claim filed by the defendants is adjudicated and
dismissed, finality is attached to it as far as the controversy in respect
of the claim put forth by the defendants is concerned. Nothing in that
regard survives as far as the said defendants are concerned. If the
definition of a decree is appropriately understood it conveys that there
has to be a formal expression of an adjudication as far as that Court is
concerned. The determination should conclusively put to rest the rights of
the parties in that sphere. When an opinion is expressed holding that the
counter-claim is barred by principles of Order 2, Rule 2 C.P.C., it
indubitably adjudicates the controversy as regards the substantive right of
the defendants who had lodged the counter-claim. It cannot be regarded as
an ancillary or incidental finding recorded in the suit. In this context,
we may fruitfully refer to a three-Judge Bench decision in M/s. Ram Chand
Spg. & Wvg. Mills v. M/s. Bijli Cotton Mills (P) Ltd., Hathras and
Others[4] wherein their Lordships was dealing with what constituted a
final order to be a decree. The thrust of the controversy therein was that
whether an order passed by the executing court setting aside an auction
sale as a nullity is an appealable order or not. The Court referred to the
decisions in Jethanand and Sons v. State of Uttar Pradesh[5] and Abdul
Rahman v. D.K. Kassim and Sons[6] and proceeded to state as follows:-

“In deciding the question whether the order is a final order determining
the rights of parties and, therefore, falling within the definition of a
decree in Section 2(2), it would often become necessary to view it from the
point of view of both the parties in the present case — the judgment-debtor
and the auction-purchaser. So far as the judgment-debtor is concerned the
order obviously does not finally decide his rights since a fresh sale is
ordered. The position however, of the auction-purchaser is different. When
an auction-purchaser is declared to be the highest bidder and the auction
is declared to have been concluded certain rights accrue to him and he
becomes entitled to conveyance of the property through the court on his
paying the balance unless the sale is not confirmed by the court. Where an
application is made to set aside the auction sale as a nullity, if the
court sets it aside either by an order on such an application or suo motu
the only question arising in such a case as between him and the judgment-
debtor is whether the auction was a nullity by reason of any violation of
Order 21, Rule 84 or other similar mandatory provisions. If the court sets
aside the auction sale there is an end of the matter and no further
question remains to be decided so far as he and the judgment-debtor are
concerned. Even though a resale in such a case is ordered such an order
cannot be said to be an interlocutory order as the entire matter is finally
disposed of. It is thus manifest that the order setting aside the auction
sale amounts to a final decision relating to the rights of the parties in
dispute in that particular civil proceeding, such a proceeding being one in
which the rights and liabilities of the parties arising from the auction
sale are in dispute and wherein they are finally determined by the court
passing the order setting it aside. The parties in such a case are only the
judgment-debtor and the auction-purchaser, the only issue between them for
determination being whether the auction sale is liable to be set aside.
There is an end of that matter when the court passes the order and that
order is final as it finally, determines the rights and liabilities of the
parties, viz., the judgment-debtor and the auction-purchaser in regard to
that sale, as after that order nothing remains to be determined as between
them.”
After so stating, the Court ruled that the order in question was a
final order determining the rights of the parties and, therefore, fell
within the definition of a decree under Section 2(2) read with Section 47
and was an appealable order.
17. We have referred to the aforesaid decisions to highlight that
there may be situations where an order can get the status of a decree. A
Court may draw up a formal decree or may not, but if by virtue of the order
of the Court, the rights have finally been adjudicated, irrefutably it
would assume the status of a decree. As is evincible, in the case at hand,
the counter-claim which is in the nature of a cross-suit has been
dismissed. Nothing else survives for the defendants who had filed the
counter-claim. Therefore, we have no hesitation in holding that the order
passed by the learned trial Judge has the status of a decree and the
challenge to the same has to be made before the appropriate forum where
appeal could lay by paying the requisite fee. It could not have been
unsettled by the High Court in exercise of the power under Article 227 of
the Constitution of India. Ergo, the order passed by the High Court is
indefensible.
18. Consequently, the appeal is allowed and the order passed by the High
Court is set aside. However, as we are annulling the order on the ground
that revision was not maintainable, liberty is granted to the respondents
to prefer an appeal before the appropriate forum as required under law. We
may hasten to add that we have not expressed any opinion on the merits of
the case. There shall be no order as to costs.

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

.............................J.
[V.
Gopala Gowda]

New Delhi;
October 14, 2014

-----------------------
[1] The words and figures “section 47 or” omitted by CPC (Amendment) Act
104 of 1976, S 3 (w.e.f. 1-2.1077)
[2] (1999) 4 SCC 89
[3] (1996) 4 SCC 699
[4] AIR 1967 SC 1344
[5] AIR 1961 SC 794
[6] AIR 1933 PC 58

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15

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