Chakmas have a right to be granted citizenship subject to the procedure being followed. It also stands recognized by judicial decisions that they cannot be required to obtain any Inner Line permit as they are settled in the State of Arunachal Pradesh.The history of the mountainous and multitribal north-east frontier region which is now known as Arunachal Pradesh ascends for hundreds of years into the mists of tradition and mythology. According to Pauranic legend, Rukmini, the daughter of King Bhishmak, was carried away on the eve of her marriage by Lord Krishna himself. The ruins of the fort at Bhalukpung are claimed by the Akas as the original home of their ancestor Bhaluka, the grandson of Bana Raja, who was defeated by Lord Krishna at Tezpur (Assam). A Kalita King, Ramachandra, driven from his kingdom in the plains of Assam, fled to the Dafla (now Nishang) foothills and established there his capital of Mayapore, which is identified with the ruins on the Ita hill. A place of great sanctity in the beautiful lower reaches of the Lohit River, the Brahmakund, where Parasuram opened a passage through the hills with a single blow of his mighty axe, still attracts the Hindu pilgrims from all over the country. It is well known that the Chakmas and Hajongs were displaced from the area which became part of East Pakistan (now in Bangladesh) on construction of Kaptai Dam and were allowed to be rehabilitated under the decision of the Government of India. As earlier held by this Court, the Delhi High Court and Gauhati High Court, they need to be protected and their claims of citizenship need to be considered as per applicable procedure. They could not be discriminated against in any manner pending formal conferment of rights of citizenship. Their status also stands duly acknowledged in the guidelines of the Election Commission of India. Accordingly, we allow this petition and direct the Government of India and the State of Arunachal Pradesh to finalise the conferment of citizenship rights on eligible Chakmas and Hajongs and also to ensure compliance of directions in judicial decisions referred to in earlier part of this order for protection of their life and liberty and against their discrimination in any manner. The exercise may be completed at the earliest preferably within three months from today.

 REPORTABLE



                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION


                    WRIT PETITION (CIVIL) NO.510 OF 2007


COMMITTEE FOR C.R. OF C.A.P. & ORS.              …PETITIONERS

VERSUS

STATE OF ARUNACHAL PRADESH & ORS.           ...RESPONDENTS



                               J U D G M E N T


ADARSH KUMAR GOEL, J.

1.    This petition under Article 32 of the  Constitution  of  India  mainly
seeks direction against Union of India through Ministry of Home  Affairs  to
grant citizenship to the Chakma and Hajong Tribals who migrated to India  in
1964-1969 and were settled in the State of Arunachal Pradesh.

2.    Petitioner No.1 has described itself  as  “Committee  for  Citizenship
Rights of the Chakmas of Arunachal  Pradesh”  (“CCRC”).   According  to  the
averments in the petition, representations  were  filed  with  the  National
Human  Rights  Commission  (“NHRC”)  alleging  persecution  of  Chakmas  and
Hajongs in the State of Arunachal Pradesh.  The NHRC approached  this  Court
by way of a Writ Petition (C) No.720 of 1995 titled “National  Human  Rights
Commission vs. State of  Arunachal  Pradesh”  seeking  direction  from  this
Court to ensure that the Chakmas and Hajongs are not  forcibly  ousted  from
the State of Arunachal Pradesh,  which  was  disposed  of  on  9th  January,
1996[1].   In the said case, the Union of India appeared before  this  Court
and stated that decision to settle the Chakmas in  the  State  of  Arunachal
Pradesh was taken after discussion between the Government of India  and  the
North-East Frontier  Agency  (“NEFA”)  Administration  (Predecessor  of  the
State of Arunachal Pradesh).  The Chakmas were  residing  in  the  State  of
Arunachal Pradesh  for  more  than  three  decades  and  had  close  social,
religious and economic ties.  As per joint statement  issued  by  the  Prime
Ministers of India and Bangladesh in February, 1972,  the  Union  Government
took a decision to confer citizenship on the Chakmas under  Section  5(1)(a)
of the Citizenship  Act,  1955  but  the  State  of  Arunachal  Pradesh  had
reservations on this count.  The Central  Government  was  in  favour  of  a
dialogue between the State Government, the  Chakmas  and  all  concerned  to
resolve the issue of granting citizenship while also redressing the  genuine
grievances of citizens of Arunachal Pradesh.  The  stand  of  the  State  of
Arunachal Pradesh was that it had provided basic amenities  to  the  Chakmas
but the State had a right to ask the Chakmas to quit the State.   The  State
could not permit outsiders to settle within its territory as it had  limited
resources and the Union of India had refused to  share  its  responsibility.
The Deputy Commissioner of the area was  to  forward  the  applications  for
citizenship after due inquiry but no such application was pending.   Further
stand of the State was that settlement of Chakmas will  disturb  its  ethnic
balance and destroy its culture and identity.   The  tribals  of  the  State
consider Chakmas as potential threat to their tradition and culture.
3.    This Court considered rival submissions  and  held  that  the  Chakmas
apprehend threat on the All Arunachal Pradesh Students’ Union (“AAPSU”)  who
were reported to be enforcing  economic  blockades  on  the  refugee  camps,
adversely affecting supply of ration, medical and  essential  facilities  to
the Chakmas.  Some Chakmas had died on  account  of  blockade.   This  Court
further  noticed  that  Chakmas  could  invoke  Section   5(1)(a)   of   the
Citizenship Act by filing application in form prescribed by Part II  of  the
Citizenship           Rules, 1956.  The observations in NHRC  case  (supra),
inter alia, are as follows :-

“18. From what we have  said  hereinbefore,  there  is  no  doubt  that  the
Chakmas who migrated from East Pakistan  (now  Bangladesh)  in  1964,  first
settled down in the State of Assam and then shifted to areas which now  fall
within the State of Arunachal Pradesh. They have  settled  there  since  the
last about two and a half decades and have  raised  their  families  in  the
said State. Their children have married and  they  too  have  had  children.
Thus, a large number of them were born  in  the  State  itself.  Now  it  is
proposed to uproot them by force. The AAPSU has been giving out  threats  to
forcibly drive  them  out  to  the  neighbouring  State  which  in  turn  is
unwilling to accept them. The residents of the neighbouring State have  also
threatened to kill them if they try to enter  their  State.  They  are  thus
sandwiched between two forces, each pushing in opposite direction which  can
only hurt them. Faced with the prospect of annihilation the NHRC was  moved,
which, finding it impossible to extend protection to them, moved this  Court
for certain reliefs.

19. By virtue of their long and prolonged stay in  the  State,  the  Chakmas
who migrated to, and those born in the State,  seek  citizenship  under  the
Constitution read with Section 5 of  the  Act.  We  have  already  indicated
earlier that if a person satisfies the requirements  of  Section  5  of  the
Act, he/she can be registered as a citizen of India.  The  procedure  to  be
followed in processing such requests has been outlined in  Part  II  of  the
Rules. We have adverted to the relevant  rules  hereinbefore.  According  to
these Rules, the  application  for  registration  has  to  be  made  in  the
prescribed form, duly affirmed, to the Collector within  whose  jurisdiction
he resides. After the application is so received, the authority to  register
a person as a citizen of India, is vested in the officer named under Rule  8
of the Rules. Under Rule 9, the Collector  is  expected  to  transmit  every
application under Section 5(1)(a) of the Act to the Central  Government.  On
a conjoint reading of Rules 8 and 9 it becomes clear that the Collector  has
merely to receive the application and forward it to the Central  Government.
It is only the authority constituted under Rule  8  which  is  empowered  to
register a person  as  a  citizen  of  India.  It  follows  that  only  that
authority can refuse to entertain an application made  under  Section  5  of
the Act. Yet it is an admitted fact that after receipt of  the  application,
the Deputy Collector (DC) makes an enquiry and if  the  report  is  adverse,
the DC refuses to forward the application; in other words,  he  rejects  the
application at the  threshold  and  does  not  forward  it  to  the  Central
Government. The grievance of the Central Government is  that  since  the  DC
does not forward the applications, it  is  not  in  a  position  to  take  a
decision whether or not to register the person as a citizen of  India.  That
is why it is said that the DC or Collector,  who  receives  the  application
should be directed to forward the same to the Central Government  to  enable
it to decide the request on merits.  It  is  obvious  that  by  refusing  to
forward the applications of the Chakmas to the Central  Government,  the  DC
is failing in his duty and is also preventing the  Central  Government  from
performing its duty under the Act and the Rules.

20. We are a country governed by the Rule of Law. Our  Constitution  confers
certain rights on every human being and certain other  rights  on  citizens.
Every person is entitled to equality before the law and equal protection  of
the laws. So also, no person  can  be  deprived  of  his  life  or  personal
liberty except according to procedure established by law. Thus the State  is
bound to protect the life and liberty of every human being, be he a  citizen
or otherwise, and it cannot permit any body or group of persons,  e.g.,  the
AAPSU, to threaten the Chakmas to leave the State, failing which they  would
be forced to do so. No State Government worth the  name  can  tolerate  such
threats by one group of persons to another group of  persons;  it  is  duty-
bound to protect the threatened group from such assaults and if it fails  to
do so, it will fail to perform  its  constitutional  as  well  as  statutory
obligations. Those giving such threats would be liable to be dealt  with  in
accordance with law. The State Government must  act  impartially  and  carry
out its legal obligations to safeguard the life, health  and  well-being  of
Chakmas residing in the State without being  inhibited  by  local  politics.
Besides, by refusing to forward their applications, the Chakmas  are  denied
rights, constitutional and statutory, to be considered for being  registered
as citizens of India.”


4.    Accordingly, direction was issued to the State  of  Arunachal  Pradesh
to ensure that life and  liberty  of  Chakmas  residing  in  the  State  was
protected against any attempt to evict them  by  organized  groups  such  as
AAPSU and their applications could be forwarded to the Central Government.

5.    Case of the petitioners, further is that the application of the  State
of Arunachal Pradesh for modification and Writ Petition (C) No.593  of  1997
filed by an  organization  of  tribals  of  Arunachal  Pradesh  against  the
judgment of this Court was also dismissed. Another writ petition being  Writ
Petition No.13 of 1998 against the judgment of this Court was  dismissed  on
9th December, 2002.  Thereafter applications were filed for citizenship  but
the same were not acted upon.  The  Election  Commission  of  India  in  the
light of judgment  of  this  Court  passed  orders  dated  3rd  March,  2004
declaring the resolution dated  14th  May,  2003  passed  by  the  State  of
Arunachal  Pradesh   against   facilities   to   the   petitioners   to   be
unconstitutional but the authorities of the State of Arunachal  Pradesh  had
not forwarded the applications as required under Rule 9 of  the  Citizenship
Rules to the Central Government.

6.    Counter affidavit has been filed by the Union of  India  stating  that
the applications directly received by the  Ministry  of  Home  Affairs  were
forwarded to  the  Government  of  Arunachal  Pradesh  which  had  not  been
returned except few applications with negative  recommendations.   The  said
applications were returned back to  the  Government  of  Arunachal  Pradesh.
Ministry of Home Affairs had advised the Government of Arunachal Pradesh  to
act in compliance with the judgment of this Court.

7.    The stand of the State of Arunachal  Pradesh  is  that  there  was  no
threat to the life and liberty of the Chakmas and  Hajong  refugees.   After
receiving the judgment  of  this  Court,  the  judgment  was  circulated  to
Inspector  General  of  Police,  Deputy  Commissioners  of   the   concerned
Districts and Principal Chief Conservator of Forests.  The State  Government
was fully bound by the direction of this Court and had taken  all  necessary
steps to comply with the same.  The State of Arunachal Pradesh had  received
4382 applications. Though the popular sentiment of  the  indigenous  tribals
was different, the State of Arunachal Pradesh was  honouring  the  order  of
this Court.  It is further  stated  that  Chakmas  and  Hajong  tribes  were
settled in NEFA from 1964 to 1969 when there were no elected bodies  in  the
State of Arunachal Pradesh.  The laws applicable in the State  of  Arunachal
Pradesh like the Government of India Act, 1870, the Bengal Eastern  Frontier
Regulation, 1873, the Scheduled  District  Act,  1874,  the  Assam  Frontier
Tract Regulation, 1880, the Assam  Frontier  Forest  Regulation,  1891,  the
Chin Hills Regulations, 1896  and  the  Assam  Frontier  (Administration  of
Justice) Regulation, 1945 (1 of 1945) were  not  taken  into  account.   One
thousand four hundred  ninety  seven  Chakmas  have  been  included  in  the
electoral rolls.

8.    The  petitioners  have  filed  a  rejoinder  affidavit  alleging  that
children of Chakmas and Hajongs are  denied  educational  facilities.   They
were not being covered by the public distribution system.  They presented  a
petition to the 10th  Lok  Sabha  and  also  to  Rajya  Sabha  Committee  on
Petitions.  The said  Committee  in  its  105th  Report  published  on  14th
August, 1997 made recommendation to grant Indian Citizenship to the  Chakmas
but the said recommendation has not been acted upon.  The recommendation  is
as follows :

“42. The Committee, therefore, recommends  that  the  Chakmas  of  Arunachal
Pradesh who came there prior to 25.3.1971  be  granted  Indian  citizenship.
The Committee also recommends that those  Chakmas  who  have  been  born  in
India should also  be  considered  for  Indian  citizenship.  The  Committee
further recommends that the fate of those Chakmas  who  came  to  the  State
after 25.3.1971 be discussed and  decided  by  the  Central  Government  and
State Government Jointly. The Committees also recommends that  all  the  old
applications of Chakmas for citizenship which have either been  rejected  or
withheld by Deputy Commissioners or the State  Deputy  Commissioner  or  the
State Government continue to block the forwarding of  such  applications  to
Central Government, the  Central  Government  may  consider  to  incorporate
necessary provision in the Rules (or the Act  it  so  required)  whereby  it
could directly receive, consider and decide the application for  citizenship
in the  23  case  of  Chakmas  of  Arunachal  Pradesh.  The  Committee  also
recommends that Chakmas be also considered for granting them the  status  of
Scheduled Tribes at the time of  granting  the  citizenship.  The  Committee
would  like  to  earnestly  urge  upon  the  Central  Government  and  State
Government to ensure  that  until  amicable  solution  is  arrived  at,  the
Chakmas are allowed to stay in Arunachal Pradesh with  full  protection  and
safety, honour and dignity”.

9.    When the matter came up for hearing before this Court on  1st  August,
2012, the following order was passed :-
“Mr. B. Bhattacharyya,  learned  Additional  Solicitor   General         for
respondent No. 5, and Mr. Anil Shrivastav, learned counsel   for  respondent
Nos. 1 to 4, pray for some time to seek  instructions  and  also  to  ensure
that the controversy raised in the Writ Petition  is resolved at  the  hands
of  the  Central  Government  and  the  State Government at the earliest.”

10.   Again on 28th August, 2012, following order was passed :
“Mr. B. Bhattacharyya, learned Additional Solicitor   General      appearing
for  the  respondent   No. 5 - Union  of   India,  submits   that  all  4637
applications for grant of citizenship in  respect  of   Chakmas received  in
the  Ministry  of   Home  Affairs,   Government   of    India   have    been
returned  to  the  State   Government   as   the   applications   were   not
made  to  the  appropriate  authority   in    prescribed   form   and   were
also   not    accompanied    with    the  recommendations   of   the   State
Government   as   per   statutory  requirement.

       Having  regard  to  the  decision  of   this   Court   in    National
Human Rights Commission Vs.   State  of  Arunachal   Pradesh   and  Another,
(1996) 1 SCC 742, and the directions  contained  therein,    we  direct  the
State of Arunachal Pradesh to submit a  comprehensive   report/affidavit  to
this Court  in  respect  of  4637  applications   returned  by  the  Central
Government to the State Government  on  the  following  aspects  in  respect
of each application :-

 (i)  Whether  the  conditions  laid  down  in  the   relevant   clauses  of
Section 5 of   the   Citizenship   Act,   1955   (for   short,   'Act')  are
satisfied;

(ii)        Whether the  applicant  has  an  intention  to  make  India  his
permanent home;

(iii)        Whether  the  applicant  has  signed  oath  of  allegiance   as
specified in the Second Schedule to the Act; and

(iv)  Whether the applicant is  of  good  character  and   is   otherwise  a
fit and proper person to  be  registered  as  a   citizen of India.

      The above report/affidavit  shall  be  submitted  by  the   State   of
Arunachal   Pradesh    to    this    Court     through     the     Secretary
(Political), Government of Arunachal Pradesh within two months from  today.

      A copy of the report/affidavit shall  be  given  to  the  Advocate-on-
Record for the petitioners well in advance.”


11.   On 20th January, 2014, this Court passed the following Order:

“List the matter on 5th May, 2014,  so  as   to   enable   the   Joint  High
Powered  Committee  constituted   vide   Government   of    India's    Order
No.13/2/2010-NE-II dated 10/08/2010. to place on record the  progress   made
in the matter.

      We are sure that the Committee would make all  efforts   so  that  the
work entrusted to it is  concluded  preferably  before  the  next  date   of
hearing.”

12.   Additional Affidavit dated 2nd January, 2013 was filed  by  the  State
of Arunachal Pradesh stating that the Government of India, Ministry of  Home
Affairs (N.E. Division) has constituted a committee under  the  Chairmanship
of Joint Secretary (N.E.), Ministry of Home Affairs on 10th August, 2010  to
examine  various  issues  relating  to  settlement  of  Chakmas/Hajongs   in
Arunachal Pradesh including the possibility of granting  Indian  citizenship
to eligible Chakmas/ Hajongs.  The Committee has held  its  sitting  on  9th
January, 2012 and taken certain decisions.  Thus, the issue  was  not  being
ignored though there was no delay in the matter.
13.   We have heard learned counsel for the parties and perused the record.

14.   Learned counsel for the petitioners submitted that their  rights  have
been duly acknowledged by this Court in NHRC  case  (supra).   Still,  their
legitimate right of citizenship has not  so  far  materialized.   They  have
been settled after  a  conscious  decision  at  the  highest  level  of  the
Government of India.  They could not  be  treated  as  foreigners.   He  has
placed reliance on a judgment of the Gauhati High Court   dated 19th  March,
2013 in PIL No.52 of 2010  titled  “All  Arunachal  Pradesh  Students  Union
(AAPSU) vs. The Election Commission of India” dismissing  a  petition  filed
by AAPSU against the guidelines issued by the Election Commission  of  India
for revision  of  electoral  rolls  in  respect  of  areas  where  there  is
substantial presence of Chakmas and Hajongs.   In  the  said  judgment,  the
Memorandum   dated 23rd March, 2005 issued by  the  Election  Commission  of
India and further  guidelines  dated  3rd  October,  2007  for  revision  of
electoral rolls with reference to 1st January, 2007 as qualifying  date  are
also referred to.  The  objection  against  the  Chakmas  being  treated  as
ordinary residents of Arunachal Pradesh in absence of  possession  of  valid
Inner Line Passes was also considered.  The  Election  Commission  of  India
supported its guidelines with guidelines with reference  to  a  judgment  of
the Delhi High Court dated 28th September,  2000  in  W.P.  No.886  of  2000
(Peoples Union for Civil Liberties vs. Election Commission of India &  Ors.)


15.   In the judgment of the Gauhati  High  Court,  it  was  noted  that  in
contradiction  to  those  unwanted  illegal  migrants  who  sneak  into  the
country, the Chakmas migrated to India on account of their displacement  and
the Government  of  India  agreed  to  grant  them  citizenship.   In  these
circumstances, the guidelines of the Government of India  were  held  to  be
justified and did not warrant any requirement of  Inner  Line  permit.   The
relevant observations are :

“[18] ………. Having regard to the facts  and  circumstances  which  have  been
also highlighted by the Hon'ble Supreme Court as referred to above  in  NRHC
case, we are of the view  that  these  additional  guidelines,  having  been
issued in the  peculiar  circumstances  obtaining,  cannot  be  held  to  be
discriminatory.

Further, in view of the policy decision taken by the Government of India  to
settle the Chakma  refugees  in  different  States  and  also  in  Arunachal
Pradesh in consultation with the authorities of the Arunachal  Pradesh,  and
also to confer Indian citizenship, the contention of  the  petitioners  that
the aforesaid guidelines have the effect of violating the provisions of  law
in terms of lack of Inner Line Permit or violation of provisions of  section
13 of the Registration of Births and Deaths Act, 1969 does not  hold  water.
We are of the view that once a decision  had  been  taken  to  settle  these
Chakma refugees in Arunachal Pradesh in consultation  with  the  authorities
of Arunachal Pradesh, they would become residents of Arunachal  Pradesh  and
would not require the Inner Line  Permit/Pass.  Otherwise  also,  once  they
have been allowed to settle in Arunachal Pradesh, it would  be  deemed  that
such permits had been granted to them and in  our  considered  opinion,  any
other view would  negate  and  defeat  the  policy  decision  taken  by  the
Government of India in consultation with the Arunachal  Pradesh  authorities
to settle these Chakmas in Arunachal Pradesh.

Similarly, as regards, the other contention  of  the  petitioners  that  the
guidelines  would  contravene  the  provisions  of   section   13   of   the
Registration of Births and Deaths Act, 1969 also cannot be accepted. It  may
be noted that the Chakmas had taken refuge in this  country  under  distress
and trying circumstances after having been uprooted from  their  hearth  and
homes and made to flee  to  avoid  persecution.  Further,  later  on,  after
having allowed to settle in Arunachal Pradesh, they had  faced  difficulties
and harassments from the neighbouring local populace which  had  been  taken
note of by the Supreme Court in NHRC case  as  mentioned  above.  Therefore,
issuing of the additional guidelines for the purpose of verification of  the
birth of the claimants on the basis of  other  credible  materials  for  the
purpose of enrolment in the electoral rolls where  these  Chakmas  had  been
officially settled cannot be interfered with merely on the technical  ground
that certain provisions of Registration of Births and Deaths Act, 1969  have
not been strictly complied with, if the  evidences  are  otherwise  credible
and trustworthy.

We are of the view that the additional guidelines which had been  issued  by
the Election Commission of India are  merely  to  enable  those  Chakmas  to
enjoy such benefits as a citizen of this  Country  including  the  right  to
vote by having their names enrolled in the electoral rolls of the  concerned
constituency where they have been  settled.   Once,  these  Chakma  refugees
have been granted citizenship, they are entitled to  enjoy  all  the  rights
and privileges that flow on becoming a citizen of this country and  further,
 they are entitled  to  have  their  rights  as  citizens  of  this  country
protected and safeguarded.”





16.   We find merit  in  the  contention  of  the  petitioners.   It  stands
acknowledged by this Court on the basis of stand of the Government of  India
that the Chakmas have a right to  be  granted  citizenship  subject  to  the
procedure being followed.  It also stands recognized by  judicial  decisions
that they cannot be required to obtain any Inner Line  permit  as  they  are
settled in the State of Arunachal Pradesh.

17.   In State of Arunachal Pradesh  vs.  Khudiram  Chakma[2],   this  Court
noted the ancient history of Arunachal Pradesh as follows :

“41. The history of the  mountainous  and  multitribal  north-east  frontier
region which is now known as  Arunachal  Pradesh  ascends  for  hundreds  of
years into the mists of  tradition  and  mythology.  According  to  Pauranic
legend, Rukmini, the daughter of King Bhishmak, was carried away on the  eve
of her  marriage  by  Lord  Krishna  himself.  The  ruins  of  the  fort  at
Bhalukpung are claimed by the Akas as the original home  of  their  ancestor
Bhaluka, the grandson of Bana Raja, who was  defeated  by  Lord  Krishna  at
Tezpur (Assam). A Kalita King, Ramachandra, driven from his kingdom  in  the
plains of Assam, fled to the Dafla (now Nishang) foothills  and  established
there his capital of Mayapore, which is identified with  the  ruins  on  the
Ita hill. A place of great sanctity in the beautiful lower  reaches  of  the
Lohit River, the Brahmakund, where Parasuram opened a  passage  through  the
hills with a single blow  of  his  mighty  axe,  still  attracts  the  Hindu
pilgrims from all over the country.”

18.   The above history shows the integral link of the  State  of  Arunachal
Pradesh with the rest of the country since ancient times.  It is well  known
that the Chakmas and Hajongs were displaced from the area which became  part
of East Pakistan (now in Bangladesh) on construction of Kaptai Dam and  were
allowed to be rehabilitated under the decision of the Government  of  India.
As earlier held by this Court, the Delhi High Court and Gauhati High  Court,
they need to be protected  and  their  claims  of  citizenship  need  to  be
considered as per applicable procedure.  They  could  not  be  discriminated
against in any manner pending formal conferment of  rights  of  citizenship.
Their status  also  stands  duly  acknowledged  in  the  guidelines  of  the
Election Commission of India.

19.    Learned  Additional  Solicitor  General  fairly   stated   that   the
Government of India will earnestly take appropriate measures in the  matter,
 granted some more time.

20.   Accordingly, we allow this  petition  and  direct  the  Government  of
India and the State of Arunachal  Pradesh  to  finalise  the  conferment  of
citizenship rights on eligible  Chakmas  and  Hajongs  and  also  to  ensure
compliance of directions in judicial decisions referred to in  earlier  part
of this order for protection of their life and  liberty  and  against  their
discrimination in  any  manner.   The  exercise  may  be  completed  at  the
earliest preferably within three months from today.

                                                             .…………………………….J.
         [ ANIL R. DAVE ]

                                                             ……………………………..J.
                                                       [ ADARSH KUMAR GOEL ]
NEW DELHI
SEPTEMBER 17, 2015






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


        (1996) 1 SCC 742
[2]


       (1994) Supp. 1 SCC 615

-----------------------
Page 18 of 18

N.I.Act Sec.138 and sec.141 - Main person who received goods not made as a party and No notice was given but notice was given to the Sister Concern without any proper pleadings that the liability to discharge the debt was taken over by sister concern and issued cheques for those debts - It is not the specific case of the applicant made out in the complaint that the first accused in his capacity of proprietor of Shah Enterprises and the second accused in his capacity of power of attorney of Shah Enterprises had agreed to take over and discharge the liability of M/s. Shah Agency. Reliance is placed by the applicant on the letter at Exh.P-5. Apart from the fact that the said letter is no evidence to show that the liability of Shah Agency was taken over by Shah Enterprises, as stated earlier, the said case was never made out by the applicant in the complaint. The said case made out in the complaint is that the liability is of M/s. Shah Enterprises and not of M/s. Shah Agencies. The letter dated 7th December 2000 at Exh. P-5 is not signed by accused No.1 who according to the applicant is the proprietor or partner of Shah Enterprises. The letter has been sent by accused No.2 in his capacity as constituted attorney of Shah Agencies. Therefore, the letter cannot be termed as a document under which the liability of Shah Agencies was specifically agreed to be taken over by the Shah Enterprises or by the accused Nos.1 and 2.”“The notice under Section 138 is required to be given to the ‘drawer’ of the cheque so as to give the drawer an opportunity to make the payment and escape the penal consequences. No other person is contemplated by Section 138 as being entitled to be issued such notice. The plain language of Section 138 is very clear and leaves no room for any doubt or ambiguity. There is nothing in Section 138 which may even remotely suggest the issuance of notice to anyone other than the drawer.”“Normally an offence can be committed by human beings who are natural persons. Such offence can be tried according to the procedure established by law. But there are offences which could be attributed to juristic person also. If the drawer of a cheque happens to be a juristic person like a body corporate it can be prosecuted for the offence under Section 138 of the Act. Now there is no scope for doubt regarding that aspect in view of the clear language employed in Section 141 of the Act. In the expanded ambit of the word ‘company’ even firms or any other associations of persons are included and as a necessary adjunct thereof a partner of the firm is treated as director of that company.” “Thus when the drawer of the cheque who falls within the ambit of Section 138 of the Act is a human being or a body corporate or even firm, prosecution proceedings can be initiated against such drawer. In this context the phrase ‘as well as’ used in Sub-section (1) of Section 141 of the Act has some importance. The said phrase would embroil the persons mentioned in the first category within the tentacles of the offence on a par with the offending company. Similarly the words ‘shall also’ in Sub- section (2) are capable of bringing the third category persons additionally within the dragnet of the offence on an equal par. The effect of reading Section 141 is that when the company is the drawer of the cheque such company is the principal offender under Section 138 of the Act and the remaining persons are made offenders by virtue of the legal fiction created by the legislature as per the section. Hence the actual offence should have been committed by the company, and then alone the other two categories of persons can also become liable for the offence.” In our opinion, the High Court has correctly come to the conclusion that the liabilities of M/s. Shah Agencies were never taken over by M/s. Shah Enterprises. Therefore, the reasoning given by the High Court, in our opinion, is absolutely flawless and we find no ground to interfere with the concurrent findings of the Trial Court and the High Court. Therefore, the present appeal is devoid of any merit. Accordingly, this appeal is dismissed.

                                                              NON REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1001 OF 2010

JITENDRA VORA                                        …APPELLANT

                                   VERSUS

BHAVANA Y. SHAH & ANR.                        …RESPONDENTS





                                  JUDGMENT

Pinaki Chandra Ghose, J.

This appeal is directed against the judgment  and  order  dated  1st  April,
2009  passed  by  the  High  Court  of  Judicature  at  Bombay  in  Criminal
Application No.940 of 2008 whereby the High Court has  rejected  the  prayer
for  leave  to  appeal  against   the   judgment   of   the   Trial   Court.


The brief facts  of  this  case  are  as  follows:
The  appellant  supplied goods      to        M/s.     Shah    Agencies.  
 The    1st    and     2nd  respondents   carried   their
business in the names of M/s. Shah Enterprises and M/s.  Shah  Agencies.  In
part discharge of the liability of M/s. Shah Agencies, two cheques  for  Rs.
5 lakhs each, both dated 20th August, 2000, drawn on the  Vysya  Bank  Ltd.,
S.P. Road, Secunderabad, signed by Respondent  No.2  as  Power  of  Attorney
Holder of Respondent No.1, were issued on  an  account  maintained  by  M/s.
Shah Enterprises.



On presentation, both the  cheques  were  dishonoured  due  to  insufficient
balance in the account of M/s. Shah Enterprises. A demand notice  dated  8th
March, 2001 was served upon respondent Nos.1 & 2 which was duly received  by
them on 13th March, 2001. The respondents failed  and  neglected  to  comply
with the said notice of demand. Hence, a complaint  was  lodged  before  the
Metropolitan Magistrate, 28th Court, Esplanade, Mumbai. The  said  complaint
was numbered as CC No.505/S/01 dated 17th April, 2001.  The  said  complaint
was lodged against the accused respondents describing accused  No.1  as  the
Proprietor of M/s. Shah Enterprises and accused No.2  as  Power of  Attorney
Holder of the said M/s. Shah Enterprises.  The  Trial  Court  acquitted  the
respondents on the ground that the appellant  did  not  institute  the  case
against the partnership firm i.e. M/s. Shah Enterprises.



Being aggrieved by the said order passed  by  the  Metropolitan  Magistrate,
the appellant filed an application for leave  to  appeal  under  sub-section
(4) of Section 378 of the Code  of  Criminal  Procedure,  1973,  before  the
Bombay High Court.  The High Court by its order dated April  1,  2009   held
that the applicant has not made out a case for  grant  of  leave  to  appeal
under Section 378(4) Cr.P.C. and rejected the said application for leave  to
appeal. The High Court held that the case made  out  in  the  complaint  was
that the goods were sold and supplied  to  M/s.  Shah  Enterprises  and  the
liability was of M/s. Shah Enterprises. While in the affidavit  in  lieu  of
examination-in-chief, the appellant herein came out with  a  case  that  the
liability was that of M/s. Shah Agencies as goods were sold and supplied  to
M/s. Shah Agencies and it was  not  the  case  of  the  appellant  that  the
accused had agreed to take over and discharge the liabilities of  M/s.  Shah
Agencies.



The question which arose before us is whether the High Court was correct  in
coming to such a conclusion. The High  Court  duly  perused  the  complaint,
affidavit in lieu of  examination-in-chief  of  the  applicant,  his  cross-
examination and other material documents on record. From these documents  it
appears that notice of demand had been addressed to the first respondent  in
her capacity as a Proprietor of M/s. Shah Enterprises,  and  to  the  second
respondent in his capacity as the Power of  Attorney  Holder  of  M/s.  Shah
Enterprises.  In the notice itself it has been stated that  the  goods  were
sold and supplied to the Proprietor of M/s. Shah Agencies. In the notice  it
has been further stated  that  the  appellant  is  engaged  in  business  of
manufacturing and selling of synthetic Polymers/Resins and  in  response  to
the orders from the 2nd respondent  as  Proprietor  of  Shah  Agencies,  the
applicant has supplied goods from time to  time  and  the  disputed  cheques
were issued in discharge of the liabilities of such supply.  The notice  was
addressed to the Proprietor  and  the  constituted  Attorney  of  M/s.  Shah
Enterprises, but there is no specific averment that the  liability  of  M/s.
Shah Agencies was taken over by M/s. Shah Enterprises.   In  the  complaint,
the first respondent was impleaded as Proprietor of  M/s.  Shah  Enterprises
and the second respondent was impleaded as a Power  of  Attorney  Holder  of
M/s. Shah Enterprises.



After perusing the notice and the averments made in the  complaint  and  the
examination-in-chief, the High Court found that the case  made  out  by  the
appellant/applicant in the aforesaid affidavit is that accused No.1 was  one
of the partners of M/s. Shah Enterprises. It is not  asserted  that  accused
No.2 is the partner of the said firm but what  is  stated  is  that  accused
No.2 is the husband of accused No.1 and Power of  Attorney  Holder  of  M/s.
Shah Enterprises. After perusing the aforesaid facts, the  High  Court  came
to the conclusion as follows:



“It is not the specific case of the applicant  made  out  in  the  complaint
that the first accused in his capacity of  proprietor  of  Shah  Enterprises
and the second accused in  his  capacity  of   power  of  attorney  of  Shah
Enterprises had agreed to take over and  discharge  the  liability  of  M/s.
Shah Agency. Reliance is placed by the applicant on the letter  at  Exh.P-5.
Apart from the fact that the said letter is no evidence  to  show  that  the
liability of Shah Agency was taken over  by  Shah  Enterprises,   as  stated
earlier, the  said  case  was  never  made  out  by  the  applicant  in  the
complaint. The said case made out in the complaint is that the liability  is
of M/s. Shah Enterprises and not of M/s. Shah  Agencies.  The  letter  dated
7th December 2000 at Exh. P-5 is not signed by accused  No.1  who  according
to the applicant is the proprietor  or  partner  of  Shah  Enterprises.  The
letter has been  sent  by  accused  No.2  in  his  capacity  as  constituted
attorney of Shah Agencies. Therefore, the  letter  cannot  be  termed  as  a
document under which the liability of Shah Agencies was specifically  agreed
to be taken over by the Shah Enterprises or by the  accused  Nos.1  and  2.”




In these circumstances, the High Court held that no case  is  made  out  for
grant of leave and rejected the application.



Learned counsel appearing on behalf of the  appellant  contended  before  us
that both the Courts below have failed to appreciate that the complaint  was
essentially filed against the accused in their personal capacities since  at
the time of filing of the complaint, the appellant believed that  M/s.  Shah
Enterprises was  a  proprietary  concern  of  respondent  No.1.  He  further
contended that respondent No.2 was a signatory of the  cheques  and  he  was
incharge of the affairs of M/s. Shah Enterprises. According to  the  learned
counsel, both the Courts adopted highly technical view of the matter. It  is
not in dispute that the cheques were drawn from the account maintained  with
M/s. Shah Enterprises.  When this Court asked the learned  counsel  for  the
appellant whether there is any liability of M/s. Shah Agency,  then  it  was
submitted that the cheques were drawn  by  M/s.  Shah  Enterprises  but  the
liability, as would be evident from the  examination-in-chief,  is  that  of
M/s. Shah Agency. Learned counsel further submitted that Section 141 of  the
Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the  NI  Act’)
has no application because the  partnership  firm  was  not  arrayed  as  an
accused. He further  submitted  that  respondent  No.2  is  liable  being  a
signatory of both the cheques and he was incharge of M/s. Shah  Enterprises.




On the contrary, it is submitted by the learned counsel appearing on  behalf
of the respondents that both the Trial Court  as  well  as  the  High  Court
rightly came to the conclusion  that  the  complaint  was  not  maintainable
against the partnership firm since cheques were  issued  on  behalf  of  the
first respondent. Furthermore M/s. Shah  Enterprises  was  never  given  any
statutory notice nor it was arrayed as an accused  before  the  Metropolitan
Magistrate. He further submitted that a three Judge Bench of this  Court  in
the case of Aneetha Hada vs. Godfather Travel and Tours Pvt. Ltd., (2012)  5
SCC 661, held that for maintaining the prosecution under  the  NI  Act,  the
company should be made a party irrespective of the fact  that  its  Director
has been arrayed  as  an  accused.   Learned  counsel  for  the  respondents
further submitted that this appeal should be dismissed  since  the  material
facts have been suppressed from the Court. The appellant ceased  to  be  the
Proprietor of M/s.  Satyen  Polymer  as  per  the  deed  of  assignment  cum
conveyance dated 3.4.2008. The said fact was  deliberately  suppressed  from
the High Court as well as from the Trial Court. The appellant did  not  make
M/s. Shah Enterprises as a party on whose  account  the  cheque  was  drawn.
Furthermore, M/s. Shah  Enterprises  had  no  outstanding  liabilities.  The
complainant himself admitted in his cross-examination that nothing was  sold
to Shah Enterprises  and  at  no  point  of  time  Shah  Agencies  has  been
prosecuted. The appellant further admits that he has no  account  with  Shah
Enterprises and  he  has   running  account  with  Shah  Agencies.  He  also
admitted  that  the  transactions  and  dealings  with  Shah  Agencies   are
reflected  in  the  books  of  accounts.   He  further  admitted  that  Shah
Enterprises is not liable to pay any amount M/s. Satyen Polymers, and  there
were  no  transactions  with  Shah  Enterprises.  Learned  counsel  for  the
respondents submitted that in these circumstances,  this  appeal  should  be
dismissed.



We have heard the learned counsel appearing for  the  parties  and  we  have
perused the evidence placed before us.  From a bare reading of  Section  138
of the NI Act, the first and foremost essential ingredient for attracting  a
liability under this Section is that the person who is  to  be  made  liable
should be the drawer of the cheque and should have drawn the  cheque  on  an
account maintained by him with a banker for payment of any amount  of  money
to another person from out of that account for discharge, in whole or  part,
of any debt or other liability. In this context, this Court in the  case  of
Krishna Texport and Capital Markets Ltd. v. Ila A. Agrawal & Ors, (AIR  2015
SC 2091), has held as under-



“The notice under Section 138 is required to be given  to  the  ‘drawer’  of
the cheque so as to give the drawer an opportunity to make the  payment  and
escape the penal consequences. No other person is  contemplated  by  Section
138 as being entitled to be  issued  such  notice.  The  plain  language  of
Section 138 is very clear and leaves no room for  any  doubt  or  ambiguity.
There is nothing  in  Section  138  which  may  even  remotely  suggest  the
issuance of notice to anyone other than the drawer.”



The learned counsel for the respondents has relied upon  the  case  of  Anil
Hada v. Indian Acrylic Ltd., (2000) 1 SCC 1, wherein this Court held –


“Normally an offence can be  committed  by  human  beings  who  are  natural
persons. Such offence can be tried according to  the  procedure  established
by law. But there are offences which could be attributed to juristic  person
also. If the drawer of a cheque happens to be a juristic person like a  body
corporate it can be prosecuted for  the  offence  under Section  138 of  the
Act. Now there is no scope for doubt regarding that aspect in  view  of  the
clear language employed in Section 141 of the Act. In the expanded ambit  of
the word ‘company’ even firms or  any  other  associations  of  persons  are
included and as a necessary  adjunct  thereof  a  partner  of  the  firm  is
treated as director of that company.”


(Emphasis supplied)


“Thus when the drawer of the cheque who falls within the  ambit  of  Section
138 of the Act  is  a  human  being  or  a  body  corporate  or  even  firm,
prosecution proceedings can  be  initiated  against  such  drawer.  In  this
context the phrase ‘as well as’ used in Sub-section (1) of  Section  141  of
the Act has some importance. The  said  phrase  would  embroil  the  persons
mentioned in the first category within the tentacles of  the  offence  on  a
par with the offending company. Similarly the words  ‘shall  also’  in  Sub-
section (2) are capable of bringing the third category persons  additionally
within the dragnet of the offence on an equal par.  The  effect  of  reading
Section 141 is that when the company  is  the  drawer  of  the  cheque  such
company is the principal offender under  Section  138 of  the  Act  and  the
remaining persons are made offenders by virtue of the legal fiction  created
by the legislature as per the section. Hence the actual offence should  have
been committed by the company, and then alone the other  two  categories  of
persons can also become liable for the offence.”





In our opinion, the High Court has correctly come  to  the  conclusion  that
the liabilities of M/s. Shah Agencies were never taken  over  by  M/s.  Shah
Enterprises. Therefore, the reasoning  given  by  the  High  Court,  in  our
opinion, is absolutely flawless and we find no ground to interfere with  the
concurrent findings of the Trial Court and the High  Court.  Therefore,  the
present  appeal  is  devoid  of  any  merit.  Accordingly,  this  appeal  is
dismissed.

                                                              …..……………………….J
                                                      (Pinkai Chandra Ghose)



                                                              …..……………………..J
                                (R.K. Agrawal)
New Delhi;
September 16, 2015

Prosecution failed to prove it's case The Trial Court relied on the two applications filed by accused Nitin Shah, one under Section 340 read with Section 195 of Cr.P.C., and the other under Section 317(2) of Cr.P.C., in reaching its judgment. The High Court rightly rejected the aforesaid two applications on the ground that the same were not proved by the prosecution. The prosecution was already suffering a weak case, over and above the non- proving of Ext. PW15/A1. The prosecution failed to prove other corroborative circumstances which included non-recovery of the weapon used in the offence and the alleged involvement of the car and motor- bike. The prosecution could not have shored its boat by merely proving that the accused were present in Delhi when the offence occurred. The vital links in the prosecution story being already missing, the prosecution could not prove a chain of events leading to a sole conclusion that the accused were guilty beyond reasonable doubt.= DYING DECLARATION On bare perusal of Section 32(1) of the Evidence Act, it is clear that the statement as to death must be made by the person himself and if any discrepancy arises, the same cannot be relied upon. This Court in Atbir v. Government of NCT of Delhi [1] has summarized the principles laid down earlier, as under: “(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court. (ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.” This Court has in a catena of judgments laid down the parameters to gauge the veracity of a dying declaration and in the present case, the complaint Ext. PW15/A1 thus fails to adhere to these guidelines. ; CRIMINAL CONSPIRACY It is now, however, well settled that a conspiracy ordinarily is hatched in secrecy. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence.However, while doing so, it must be borne in mind that meeting of mind is essential; mere knowledge or discussion would not be sufficient. Yet, the prosecution has failed to prove the evidence which establishes any prior meeting of mind of the accused. The prosecution merely proved that all the accused were present in Delhi on the date of occurrence, and that the alleged motor-bike and the car used in incident belonged to respondent No.2, Om Prakash Srivastava @ Babloo. The High Court rightly dismissed this argument, as the involvement of the said vehicles in commission of the crime were never proved. Neither any prior meeting of mind of the accused was proved, nor any action, individually or in concert, was proved against any of the accused. Needless to say that the entire foundation of the prosecution story was never established.

                                                            REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 951  OF 2007
      STATE (GOVERNMENT OF NCT OF DELHI)     ……    APPELLANT
                                   VERSUS
      NITIN GUNWANT SHAH                           ……   RESPONDENT
                                    WITH


                      CRIMINAL APPEAL NO. 952  OF 2007


      STATE (GOVERNMENT OF NCT OF DELHI)     ……    APPELLANT
                                   VERSUS
      OM PRAKASH SRIVASTAVA @ BABLOO         ……    RESPONDENT




                                  JUDGMENT
      Pinaki Chandra Ghose, J.
   1. These appeals, by  special  leave,  have  been  directed  against  the
      judgment and order dated February 22, 2007 passed by the High Court of
      Delhi at New Delhi in Criminal Appeal                Nos.519/2006  and
       527/2006, whereby the High Court allowed the criminal  appeals  filed
      by the respondents herein and acquitted both of them.


   2. The facts giving rise to these appeals, briefly stated,  are  that  in
      the morning of August 2, 1992, when one Lalit Suneja was returning  to
      his house after offering prayers to God,  he  was  shot  dead  by  two
      unknown persons near to his house. A neighbour,  namely  Nerendra  Pal
      Naresh, who happened to pass through that street,  set  the  law  into
      motion by informing the police. FIR No.258/1992 was registered by  the
      said Nerendra Pal Naresh  at P.S. Shakarpur,  East  Delhi,  about  the
      incident. During investigation, the Investigating Officer came  across
      a complaint Ext. PW15/A1 lodged in the name of Lalit  Suneja  at  P.S.
      Nizamuddin, New Delhi. Investigation was thrown into the case and  the
      following story was disclosed by the prosecution:


   3. Accused Nitin Shah was carrying on his business through a  proprietary
      concern M/s. Simnit Enterprises  and  he  had  employed  Lalit  Suneja
      (deceased) as  its  distributor  in  the  Northern  Region.  Both  the
      employer and the employee were at loggerhead for sometime  on  account
      of some payment. When the matter could not be settled,  accused  Nitin
      Shah requested his friend Om Prakash Srivastava @ Babloo to  eliminate
      Lalit Suneja and assured him to provide cash likely  to  be  spent  in
      doing the act. Accused Om Prakash Srivastava intrigued with co-accused
      persons to bring the design to fruition and accordingly accused Manish
      Dixit was hired to execute the task for Rs.1,00,000/-. On 2nd  August,
      1992, accused Virender Pant @ Chhoto  (since  deceased)  took  accused
      Manish Dixit on a motor-bike Yamaha bearing   No.DL-1SD-4680,  to  the
      spot.  Accused Manish Dixit shot dead Lalit Suneja  and fled away from
      the spot on the  same  motor-bike  described  above  being  driven  by
      accused Virender Pant and reached to co-accused Manjeet Singh who  was
      waiting for them in a car bearing No.DL-1CB-7874, at Yamuna Pusta near
      Bank Enclave. They exchanged their vehicles and rushed to  accused  Om
      Prakash Srivastava and returned him the motor bike and pistol used  in
      the crime. Accused Om Prakash Srivastava paid Rs.50,000/- to  each  of
      the accused Virender Pant and  Manjeet  Singh  for  driving  aforesaid
      motor-bike and car, in order to facilitate  accused  Manish  Dixit  in
      killing the deceased.


   4. Police filed challan against accused Manish Dixit and Manjeet Singh on
      27th October, 1992. The names of accused  Virender  Pant,  Om  Prakash
      Srivastava and Nitin Shah found place in column No.2.  Separate charge-
      sheets were filed against accused Nitin Shah,  Virender  Pant  and  Om
      Prakash  Srivastava   on   23.1.1993,   15.03.1995   and   03.01.1996,
      respectively.


   5. After considering the material on record and hearing the  counsel  for
      the accused persons, the Trial Court  by its order dated 6th  January,
      2003 framed charges against Om  Prakash  Srivastava,  Nitin  Shah  and
      Manjeet Singh for offences punishable under Sections 302/34  and  120B
      of the Indian Penal Code, 1860 (“IPC” for  short).  The  charges  were
      read over and explained to  the  accused  persons,  they  pleaded  not
      guilty and claimed trial.  Accused Virender Pant and Manish Dixit were
      reported to have died during trial.


   6. The Trial Court by  its  judgment  and  order  dated  3rd  July,  2006
      convicted the respondents Nitin  Shah  and  Om  Prakash  Srivastava  @
      Babloo,  for the offence punishable under Section 302  IPC  read  with
      Section 120B IPC and sentenced them to undergo  rigorous  imprisonment
      for life and a fine of Rs.20,000/- each, and in default of payment  of
      fine, further  imprisonment  for  six  months  was  awarded.  However,
      Manjeet Singh was acquitted by the Trial Court. Being aggrieved by the
      aforesaid  judgment  and  order  of  the  Trial  Court,   the  accused
      respondents filed two  separate  appeals  before  the  High  Court  of
      Delhi, being Criminal Appeal Nos.519 of 2006 and 527 of 2006. The High
      Court by the impugned judgment and order allowed these appeals on  the
      ground that there was nothing on the record to show that  any  of  the
      two respondents had anything to do with the murder  of   Lalit  Suneja
      and, consequently,  both the respondents were set at liberty.


   7. The Appellant -  State  has  challenged  before  us  the  judgment  of
      acquittal passed by the High Court of Delhi. Learned Counsel  for  the
      appellant has inter alia raised the following ground in these appeals.
       Whether a complaint disclosing that the complainant  was   threatened
      to be killed in case the matter was not  settled  and  thus  demanding
      action and  security,   is  not  a  clear  manifestation  of  criminal
      conspiracy? Learned counsel appearing for the appellant has  time  and
      again based  his  contention  in  and  around  the  alleged  complaint
      Ext.PW15/A1. Also, since the whole case deals with the alleged hatched
      up conspiracy to eliminate Lalit  Suneja,  any  alleged  complaint  by
      Lalit Suneja is of prime importance.


   8. The Trial Court convicted the accused respondents on the basis of  the
      prosecution   story   revolving   around   the   aforesaid   complaint
      Ext.PW15/A1.  The High Court also dealt with the issue and  held  that
      the Trial Court itself raised question on the tampering  of  the  said
      complaint as is apparent from the overwriting done  in  numbering  the
      said complaint in the Police records, yet the Trial Court went  on  to
      rely on the said complaint. The High Court has examined at length  the
      said complaint  and reversed the finding of the Trial Court.


   9. We shall at the very onset examine the said contention. The  Complaint
      Ext.PW15/A1 is alleged to have been filed by the deceased Lalit Suneja
      in his own handwriting in Hindi and signed in  English,  addressed  to
      the SHO, Police  Station  Nizamuddin,  New  Delhi.  According  to  the
      prosecution, the said complaint forms the basis of the  case,  whereby
      the  entire  events  are  the  apprehensions  made  out  in  the  said
      complaint, turned out to be true. The High Court pointed  out  various
      discrepancies in the said complaint which are worth  considering.   As
      has been held by the High Court, the prosecution outrightly failed  to
      prove the handwriting  of  the  said  complaint.  Neither  any  expert
      evidence was examined nor any acquaintance  was  called  to  establish
      that the complaint was written  by  deceased  Lalit  Suneja.  In  this
      light, the deposition of Veena (PW1) wife of  deceased  Lalit  Suneja,
      is also perused. She denied the signature on  the  said  complaint  as
      that of her deceased husband. The handwriting also could not be proved
      as  PW1  deposed  that  she  never  saw  her   husband  writing.   The
      prosecution also failed to prove the signature by  forensic  evidence.
      Apart from the above, the said complaint is shown as Entry No.605/2 in
      Register No.12 dated 23.7.1992. On examination, the High Court rightly
      pointed out that there is overwriting which is visible  to  the  naked
      eye and apparently the original Entry 605 was changed to Entry 604A to
      insert the document Ext. PW15/A1 in Register  No.12.  This  entry  has
      also been commented by  the  Trial  Court  as  being  manipulated  and
      fabricated.




  10.  The  High  Court  pointed  out  one  another  fact  discrediting  the
      prosecution  story,  whereby  the   prosecution   alleged   that   the
      Investigating  Officer  (PW20)  was  provided  with  a  photocopy   of
      Ext.PW15/A1 by PW15.  However, in reality there was no  such  copy  in
      existence in the Police File. The assertion that  the  said  complaint
      was  handed  over  to  the  Police  Station   on   23.7.1992   remains
      uncorroborated due to lack of  contemporaneous  Police  record.  There
      exists no receipt of the said complaint on 23.7.1992 or  on  2.8.1992.
      Hence the seizure by PW20 on 4.7.1992 is highly doubtful as the  Trial
      Court and so did the High Court had concurrent finding as to tampering
      with Register No.12.


  11. The prosecution story suffers another grave lacunae  and  that  is  it
      outrightly failed to prove the surrounding circumstances. To establish
      the threat of being killed, no corroborative evidence was produced nor
      any statement of account was placed on record to prove any outstanding
      amount to be paid by deceased Lalit Suneja to respondent  Nitin  Shah.
      On the contrary, the deposition of Veena (PW1) wife of deceased  Lalit
      Suneja is important, who stated  that  she  had  never  heard  of  any
      business relationship between her husband and respondent  Nitin  Shah,
      nor she was aware of any hostility between the two.


  12. The learned counsel for the appellant placed reliance on the testimony
      of the  Police  Officer  Hanuman  Dan  (PW15)  who  alleged  that  the
      complaint Ext.PW15/A1 was endorsed by the SHO  Nizammudin  to  inquire
      into the matter. PW15 also alleged to have accompanied the deceased to
      a meeting at Jukasso Inn at        8.00 P.M. on 23.7.1992 and had also
      deputed two Constables Bir Singh and Joginder. However, on perusal  of
      the Roznamcha Register on 23.7.1992, no departure  entry  of  PW15  is
      made. Instead, a departure entry at 1.30 P.M. and return of 10.00 P.M.
      is entered. Thus, doubt is cast on the event whether any complaint  as
      Ext.PW15/A1 could have been handed over to PW15 since on that day i.e.
      23.7.1992,  he was not in the Police Station  between  1.30  P.M.  and
      10.00 P.M.


  13. Another view which excludes the prosecution story is the testimony  of
      Veena (PW1)  wife of  deceased Lalit Suneja. She not only deposed that
      the signature on the complaint Ext. PW15/A1 was not of  the  deceased,
      but she further deposed that there never existed  any  enmity  between
      Nitin Shah and her husband, or that any complaint apprehending  threat
      was filed by her husband. PW1 further deposed  that  her  husband  was
      having his  business  but  the  employer-employee  relationship  never
      existed between her deceased husband and Nitin Shah.


  14. The Trial Court relied on the two applications filed by accused  Nitin
      Shah, one under Section 340 read with Section 195 of Cr.P.C., and  the
      other under Section 317(2) of Cr.P.C.,  in reaching its judgment.  The
      High Court rightly rejected the  aforesaid  two  applications  on  the
      ground  that  the  same  were  not  proved  by  the  prosecution.  The
      prosecution was already suffering a weak case, over and above the non-
      proving of  Ext.  PW15/A1.  The  prosecution  failed  to  prove  other
      corroborative circumstances which included non-recovery of the  weapon
      used in the offence and the alleged involvement of the car and  motor-
      bike. The prosecution could not have shored its boat by merely proving
      that the accused were present in Delhi when the offence occurred.  The
      vital links in  the  prosecution  story  being  already  missing,  the
      prosecution could not prove a  chain  of  events  leading  to  a  sole
      conclusion that the accused were guilty beyond reasonable doubt.


  15. The learned counsel for the appellant has pleaded various questions of
      law which are already settled by this Court. However, in  the  present
      case, the prosecution failed to make its base. Therefore, we  find  no
      point in dealing with those issues. The prosecution should  first  and
      foremost establish the complaint to be  made  by  the  deceased  Lalit
      Suneja himself.  In light of  this  argument,  Section  32(1)  of  the
      Indian Evidence Act, 1872 is reproduced below:


           “Cases in which statement of relevant fact by person who is dead
           or cannot be found, etc., is relevant. —Statements,  written  or
           verbal, of relevant facts made by a person who is dead,  or  who
           cannot be found, or who has become incapable of giving evidence,
           or whose attendance cannot be  procured  without  an  amount  of
           delay or expense which, under the  circumstances  of  the  case,
           appears to the Court unreasonable, are themselves relevant facts
           in the following cases:—


        1) when it relates to cause of death. —When the statement  is  made
           by a person as to the cause of his death, or as to  any  of  the
           circumstances of the transaction which resulted in his death, in
           cases in which the cause  of  that  person's  death  comes  into
           question. Such statements are relevant whether  the  person  who
           made them was or was not, at the time when they were made, under
           expectation of death, and whatever may  be  the  nature  of  the
           proceeding in which the cause of his death comes into question.”


      On bare perusal of Section 32(1) of the Evidence Act,   it  is  clear
      that the statement as to death must be made by the person himself  and
      if any discrepancy arises, the same cannot be relied upon. This  Court
      in Atbir v. Government  of  NCT  of  Delhi  [1]   has  summarized  the
      principles laid down earlier,  as under:
           “(i) Dying declaration can be the sole basis of conviction if it
           inspires the full confidence of the court.

           (ii) The court should be satisfied that the deceased  was  in  a
           fit state of mind at the time of making the statement  and  that
           it was not the result of tutoring, prompting or imagination.


           (iii) Where the court is satisfied that the declaration is  true
           and voluntary, it can base its conviction  without  any  further
           corroboration.

           (iv) It cannot be laid down as an absolute rule of law that  the
           dying declaration cannot  form  the  sole  basis  of  conviction
           unless it is corroborated. The rule requiring  corroboration  is
           merely a rule of prudence.

           (v) Where the dying declaration is suspicious, it should not  be
           acted upon without corroborative evidence.


           (vi) A dying declaration which suffers from  infirmity  such  as
           the deceased was unconscious and could never make any  statement
           cannot form the basis of conviction.

           (vii) Merely because a dying declaration does  not  contain  all
           the details as to the occurrence, it is not to be rejected.

           (viii) Even if it  is  a  brief  statement,  it  is  not  to  be
           discarded.

           (ix) When the eyewitness affirms that the deceased was not in  a
           fit and conscious state to make the dying  declaration,  medical
           opinion cannot prevail.


           (x) If after careful scrutiny, the court is satisfied that it is
           true and free from any effort to induce the deceased to  make  a
           false statement and if it  is  coherent  and  consistent,  there
           shall be no legal impediment to make it the basis of conviction,
           even if there is no corroboration.”




      This Court  has in a catena of judgments laid down the  parameters  to
      gauge the veracity of  a  dying declaration  and  in the present case,
      the  complaint  Ext. PW15/A1 thus fails to adhere to these guidelines.

  16. The prosecution relies upon  the  existence  of  criminal  conspiracy,
      which resulted into the death of Lalit Suneja. This Court has time and
      again laid down the ingredients to be made out by the  prosecution  to
      prove criminal conspiracy. It is now, however,  well  settled  that  a
      conspiracy ordinarily is hatched in secrecy. The Court for the purpose
      of arriving at a finding as to  whether  the  said  offence  has  been
      committed or  not  may  take  into  consideration  the  circumstantial
      evidence. However, while doing so, it  must  be  borne  in  mind  that
      meeting of mind is essential; mere knowledge or discussion  would  not
      be sufficient. Yet, the prosecution has failed to prove  the  evidence
      which establishes any prior  meeting  of  mind  of  the  accused.  The
      prosecution merely proved that all the accused were present  in  Delhi
      on the date of occurrence, and that the alleged motor-bike and the car
      used in incident belonged to respondent No.2, Om Prakash Srivastava  @
      Babloo.  The High  Court  rightly  dismissed  this  argument,  as  the
      involvement of the said vehicles in commission of the crime were never
      proved. Neither any prior meeting of mind of the accused  was  proved,
      nor any action, individually or in concert, was proved against any  of
      the accused. Needless  to  say  that  the  entire  foundation  of  the
      prosecution story was never established.


  17. Thus, in the light of the above discussion, we are of  the  view  that
      the present appeals are devoid of merits, and we find  no  grounds  to
      interfere with the judgment delivered by the High Court.  The  appeals
      are, accordingly, dismissed.




                                      …....................................J
                                                         (Pinaki Chandra
                                   Ghose)








                                       …...................................J
                                                                (R.K.
      Agrawal)

      New Delhi;


      September 16, 2015.

-----------------------
[1]  (2010) 9 SCC 1

Z.P.Elections to Chair Person - Whip of TDP to vote certain person - The appellant, however, contested the election to the office of Chairperson, ZPP, Prakasam District as an“independent candidate” and cast his vote in his own favour and in favour of one Shri N. Balaji, an independent candidate for the office of Vice-Chairperson. The appellant won the election and was accordingly declared elected as the Chairperson by one vote defeating Sri Manne Ravindra, the candidate proposed by the TDP as a candidate to the post of Chairperson.- Complaint by Whip of TDP - District Collector - By order disqualified the appellant as the member of ZPTC, and directed him to vacate the office of the Chairperson, ZPP, Prakasam Dist., Ongole.- Election O.P. to District Court - I.A. for interim suspension of Collector order - declined - writ - Single judge order for resume of office - By impugned interim order dated 10.12.2014 passed in W.A.M.P. No.3416 of 2014 in W.A. No. 1386 of 2014 and W.A.M.P. No. 3418 of 2014 in W.A.No. 1388 of 2014, the Division Bench directed the Vice-Chairperson to discharge the functions of the Chairperson until further orders and further restrained the respondents from filling up the vacancy of Chairperson. The Division Bench also directed the District Judge to decide the pending Election Petitions within three months and posted the appeals for hearing after two months.- Apex court held that 51. Now coming to the issue, we find that indisputably though the District Court declined to grant any injunction to the appellant for grant of any interim order in his favour but the learned Single Judge by order dated 7.11.2014 in W.P.Nos. 30790 of 2014 had stayed the operation of thedisqualification order dated 11.8.2014 passed by the District Collector. In our considered opinion, the effect of the suspension order dated 07.11.2014 of the learned Single Judge was that the appellant's disqualification from the post of member of ZPTC and the Chairperson of ZPP was kept in abeyance till the disposal of the election petitions. In as member and the Chairperson till the disposal of the election petitions.= In our considered o other words, no effect was to be given to the appellant's disqualification in relation to his status pinion, the impugned order of the Division Bench in directing removal of the appellant from the post of Chairperson and asking the Vice-Chairperson to take over the charge of the Chairperson in his place is not only untenable in law but also perverse

.

                                                              REPORTABLE
                            IN THE SUPREME COURT OF INDIA
                         CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL No.7115 OF 2015
                      (ARISING OUT OF SLP (C) No. 36764/2014)

Edara Haribabu                    …….Appellant(s)


                             VERSUS


Tulluri Venkata Narasimham
& Ors.                                  ……Respondent(s)

                             WITH

                        CIVIL APPEAL No.7116 OF 2015
        (ARISING OUT OF SLP (C) No. 36773/2014)
                             AND

               SPECIAL LEAVE PETITION (C) Nos. 5896-5897/2015

Mudavath Manthru Naik             …….Petitioner(s)


                             VERSUS


Edara Haribabu & Ors.             ……Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
In S.L.P.(c)Nos. 36764/2014 & 36773/2014
1.    Leave granted.
2.    These appeals  are  filed  against  the  common  interim  order  dated
10.12.2014 passed by the High Court  of  Judicature  at  Hyderabad  for  the
State of Telangana and the State of Andhra Pradesh in W.A.M.P. No.  3416  of
2014 in W.A. No.1386 of 2014 and W.A.M.P. No. 3418 of 2014 in  W.A.  No.1388
of 2014 whereby while disposing of the applications filed in these  appeals,
the High Court directed the Vice-Chairperson of  Zilla  Praja  Parishad  (in
short “ZPP”), Prakasam District, ongole to discharge the  functions  of  the
Chairperson for the office  of  Zilla  Praja  Parishad,  Prakasam  District,
Ongole until further orders.
3.    In order to appreciate the issue involved in these appeals, which  lie
in a narrow compass, it is necessary to state a  few  relevant  facts  which
were taken from the record of the S.L.Ps.
4.     The  appellant  is  the  duly  elected  member  of   Zilla   Parishad
Territorial Constituency (in short “ZPTC”)  of  Ponnaluru  Mandal,  Prakasam
District.  He had contested this election as a  candidate  of  Telugu  Desam
Party (in short “TDP”) for Prakasam District,  Ongole.  On  26.06.2014,  the
Election Commission for the State of Andhra Pradesh  (in  short  “the  State
Election  Commission”)-respondent  No.3  herein  issued   orders   directing
various District Collectors including the  District  Collector-cum-Presiding
Officer, Prakasam District (Respondent No.2 herein) to conduct  election  to
the office of Chairperson and Vice-Chairperson of the Zilla Praja  Parishads
(in short ‘ZPP’) on 05.07.2014.
5.    However, the  elections  to  the  offices  of  Chairperson  and  Vice-
Chairperson of ZPP,  Prakasam District could not be held on the  said  date,
i.e. 05.07.2014, and were accordingly postponed to a later date.
6.    On  07.07.2014,  an  order  was  issued  by  the  District  Collector,
Prakasam District (respondent No.4 herein)  requesting  the  State  Election
Commission (respondent No.3 herein) to hold the election on 13.07.2014.
7.    On 09.07.2014, the State President of the TDP addressed  a  letter  to
the State Election Commission (respondent  No.3)  informing  that  one  Shri
Bonda Uma Maheswara Rao, General Secretary of  the  TDP,  is  authorized  to
issue Form-A and Form-B as prescribed in Rule 22(1) of  the  Andhra  Pradesh
Conduct of Election of Member (Co-opted), President  and  Vice-President  of
Mandal Parishad and Members (Co-opted), Chairperson and Vice-Chairperson  of
Zila Parishad Rules, 2006  (hereinafter referred to as “The Rules”)  and  is
also authorized to issue the appointment of whip for the said  elections  in
the State of Andhra Pradesh.  Shri Bonda Uma Maheswara Rao then issued Form-
A dated 10.07.2014 authorizing one Shri  D.  Janardhana  Rao,  the  District
President of the Prakasam District TDP to issue  Form-B  to  the  candidates
set up by the TDP  in  the  aforesaid  election  insofar  as  ZPP,  Prakasam
district was concerned and on the same day he also informed the same to  the
District Collector-cum-Presiding Officer, Prakasam District, Ongole.
8.    On 12.07.2014, Shri D. Janardhana Rao informed the District Collector-
cum-Presiding  Officer  (respondent  No.2)   that   Shri   Tulluri   Venkata
Narasimham (respondent No.1) has been appointed as whip  on  behalf  of  the
TDP in relation to the election to  the  office  of  Chairperson  and  Vice-
Chairperson of ZPP, of Prakasam District. Shri  Tulluri  Venkata  Narasimham
(Respondent No.1) then issued a whip on 12.07.2014 directing  all  the  ZPTC
members belonging to the TDP to vote in favour of Shri  Manne  Ravindra  for
the office of Chairperson. On the  next  day,  i.e.  13.07.2014,  respondent
No.1 issued another whip directing all the TDP members of the ZPTC  to  vote
in favour of Smt. P. Koteswaramma for the office of Vice-Chairperson.
9.    According to the appellant, when the whip was  issued,  the  appellant
was not  present  in  Ongole  but   was  at  Hyderabad  from  07.07.2014  to
12.07.2014. It was for this reason, the appellant alleged  that  he  neither
received nor served with the copy of two whips which were  alleged  to  have
been issued. He also alleged that his  signature  acknowledging  receipt  of
the said whips were either forged or fabricated.
10.   On 13.07.2014, the said  elections  were  conducted  by  the  District
Collector-cum-Presiding Officer.   The  appellant,  however,  contested  the
election to  the  office  of  Chairperson,  ZPP,  Prakasam  District  as  an
“independent candidate” and cast his vote in his own favour  and  in  favour
of one Shri N. Balaji, an independent candidate  for  the  office  of  Vice-
Chairperson.  The appellant won the election and  was  accordingly  declared
elected as the Chairperson by one vote defeating  Sri  Manne  Ravindra,  the
candidate proposed by the TDP as a candidate to the post of Chairperson.
11.   This led to filing of a complaint by Shri Tulluri  Venkata  Narasimham
(respondent No.1) against the appellant on 14.07.2014  before  the  District
Collector-cum-Presiding Officer (respondent No.2) alleging inter  alia  that
he was appointed as a whip by the TDP in relation to the said election  held
on 13.07.2014 and that the appellant cast his vote in the said  election  in
violation of the whips issued by the TDP on 12.07.2014 and 13.07.2014.
12.   On 16.07.2014, a  show  cause  notice  was  issued  to  the  appellant
calling upon him to show cause as to why action should not be taken  against
him for violating the directions issued in the whips and why he  should  not
be disqualified as per G.O.Ms. No. 173 dated 10.05.2014  and  Section  22(5)
of the Andhra Pradesh Panchayat Raj Act, 1994 (hereinafter  referred  to  as
“the Act”).
13.   The appellant submitted his explanation on  04.08.2014  stating  inter
alia that he had not violated the whips.  It was also his case that  he  had
not received any whip and his signatures on the whips’ receipts were  either
fake or fabricated by someone.  He also stated  that  he  was  at  Hyderabad
from 07.07.2014 to 12.07.2014 and hence did not receive  the  alleged  whips
even if issued. He, therefore, prayed the  District  Collector-cum-Presiding
Officer (respondent No.2) to conduct a detailed inquiry in the matter.
14.   By order dated 11.08.2014 in Rc.No. P1/4598-Indirect election/13,  the
Presiding  Officer  &  District   Collector,   Prakasam   District,   Ongole
disqualified the appellant as the member of  ZPTC,  Ponnaluru  and  directed
him to vacate the office of the Chairperson, ZPP, Prakasam Dist., Ongole.
15.   On 12.08.2014, the Chief Executive  Officer  (in  short  “CEO”),  ZPP,
Ongole by proceedings in Rc.No.P1/4959/2014, directed Shri N. Balaji,  Vice-
Chairperson  to  temporarily  take  over  the  charge  of  the   office   of
Chairperson until a new Chairperson is duly elected.
16.   Challenging  the  order  dated  11.08.2014  passed  by  the  Presiding
Officer & District  Collector,  Prakasam  District,  Ongole,  the  appellant
filed W.P.No. 23541 of 2014  before  the  High  Court.    Vide  order  dated
22.08.2014, the High Court dismissed the petition granting  liberty  to  the
petitioner therein to approach the District Court by taking recourse to  the
remedy available under Section 181-A of the Act.
17.   The appellant accordingly filed E.O.P. No. 8 of 2014 and E.O.P. No.  9
of 2014 before the Ist Additional District Judge, Ongole against  the  order
dated 11.08.2014 passed by the Presiding  Officer  on  the  grounds  pleaded
therein.  He also filed  I.A.Nos.1697  of  2014  in  E.O.P  No.  8/2014  and
I.A.No.1684 of 2014 in E.O.P No. 9/2014 to grant ad  interim  injunction  by
suspending the order dated  11.08.2014  passed  by  the  Presiding  Officer,
Ongole in Rc. No. P1/4598-Indirect Election/B.  By orders dated  07.10.2014,
the Ist Additional District Judge dismissed the said I.As. and  declined  to
grant injunction prayed by the appellant.
18.   Questioning the order dated 07.10.2014  passed by the  Ist  Additional
District Judge, Ongole, in I.A. No. 1697 of 2014 in E.O.P. No. 8 of  2014  &
I.A.No. 1684 of 2014 in E.O.P. No. 9 of 2014, the appellant filed W.P.  Nos.
30790 and  30791 of 2014 before the High Court of  Judicature  at  Hyderabad
for the State of Telangana and the State of Andhra Pradesh.
19.    In  view  of  the  disqualification  of  the  appellant   herein,   a
representation was submitted by  Mr.  Garinipudi  Steeven  &  24  others  on
28.08.2014 to the State Election Commission and the District  Collector-cum-
Presiding  Officer  for  conducting  fresh  elections.    Since   the   said
application was not being considered by the State Election  Commission,  the
abovesaid petitioners filed W.P. No. 30799 of 2014 before the High Court.
20.   The learned Single Judge of  the  High  Court  heard  W.P.Nos.  30790,
30791 and 30799 of 2014 together  and  by  common  order  dated  07.11.2014,
allowed  W.P. Nos. 39790 and 30791 of 2014 filed  by  the  appellant  herein
and quashed  the  order  dated  07.10.2014  passed  by  the  Ist  Additional
District Judge.  The learned Single Judge  then  suspended  the  proceedings
dated 11.08.2014 by which the appellant was disqualified as ZPTC member  and
consequently as Chairperson of ZPP.  So far as W.P. No.30799 of 2014,  which
was filed for conducting fresh election in view of the  disqualification  of
the appellant herein, was concerned,  it was dismissed.
21.   On 08.11.2014, the appellant addressed a  letter  to  the  CEO,  ZPPs,
Prakasam District, Ongole informing him  that  the  order  dated  11.08.2014
passed by the District Collector-cum-Presiding  Officer,  Prakasam  District
regarding disqualification of his membership as ZPTC  and  also  Chairperson
of ZPP was suspended vide order  dated  07.11.2014  passed  by  the  learned
Single Judge of the High Court in W.P. Nos. 39790  and  30791  of  2014  and
hence the appellant be allowed to resume the  office  of   the  Chairperson,
ZPP. Prakasam District.
22.   The  appellant  accordingly   on  08.11.2014  resumed  the  office  of
Chairperson and took over the charge of the office of the Chairperson,  ZPP,
Prakasam District and started conducting various meetings and  took  various
decisions.
23.   To complete the narration of the facts, it may here be mentioned  that
one Rajendra Prasad, felt aggrieved of the order dated 12.08.2014 passed  by
the CEO in Rc.No.P1/4959/2014, by which Mr. N. Balaji  Vice-Chairperson  was
temporarily allowed to take over the charge of  the  office  of  Chairperson
consequent upon declaration of appellant’s disqualification for the post  of
Chairperson and filed a writ petition bearing W.P.No.31113  of  2014  before
the High Court.
24.   Vide order dated 12.11.2014, the learned  Single  Judge  of  the  High
Court allowed W.P.No.31113 of 2014 filed by M.Rajendra Prasad and  suspended
the proceedings dated 12.08.2014 subject to further orders.
25.   In the meantime, Shri  Tulluri  Venkata  Narasimham-  respondent  No.1
herein filed W.A.M.P. No.  3416  of  2014  in  W.A.No.  1386  of  2014   and
W.A.M.P. No. 3418 of 2014 in W.A. No. 1388 of 2014  before  the  High  Court
challenging the order dated 07.11.2014 passed by the learned  Single  Judge.

26.   On 12.11.2014, the Chief Executive  Officer  (CEO),  ZPP  addressed  a
letter  in  Rc.  No.P1/4598/High  Court  Cases/2013  to  the   Commissioner,
Panchayat Raj & Rural Development stating that pursuant to the  order  dated
07.11.2014 passed by the High Court, the appellant has  resumed  the  office
of  the  Chairperson,  ZPP,  Prakasam  District  on  08.11.2014.    However,
respondent No.1, on his part  informed  that  he  had  preferred  an  appeal
against the order dated 07.11.2014 before the  High  Court.    Though  there
was no interim order passed in the writ appeals  filed  by  respondent  No.1
herein before the High Court yet the  CEO  sought  clarifications  from  the
Commissioner on this issue as to what should be done in the case.
27.   On 13.11.2014, the appellant, was constrained to send a  legal  notice
to the CEO to ensure compliance of the order dated 07.11.2014 passed by  the
learned Single Judge and co-operate with the  appellant  to  enable  him  to
discharge  the  duties   as   Chairperson   and   forthwith   withdraw   the
clarification letter dated 12.11.2014  sent  by  him  to  the  Commissioner,
which according to appellant was not at all necessary.
28.    On  14.11.2014,  the  appellant  also  addressed  a  letter  to   the
Commissioner against the CEO and  Dy.  C.E.O.  and  requested  him  to  take
disciplinary  action  against  them.   By  letter  dated   15.11.2014,   the
Commissioner informed to the Secretary to the Government that the  appellant
has resumed the office of the Chairperson from 08.11.2014.
29.   On 25.11.2014, one Shri Lakshminarayana filed W.P. No. 36421  of  2014
seeking suspension of proceedings dated 12.08.2014 of the CEO directing  the
Vice-Chairperson to act as the Chairperson which  was  already  the  subject
matter  of  pending  Writ  Petition  No.  31113/2014.  On  26.11.2014,   the
appellant filed an application for bringing on record the documents to  show
that he has already resumed the office as the Chairperson  pursuant  to  the
final order dated 07.11.2014 passed by the learned  Single  Judge   in  W.P.
Nos. 30790 & 30791 of 2014 and has been functioning since  08.11.2014.   He,
therefore, contended that there arise no occasion to allow anyone to  resume
the post of Chairperson and secondly, no vacancy  arises  for  the  post  of
Chairperson at least till the final disposal of the main election  petitions
pending before the District Court.
30.   The High Court, in the meantime, by order  dated  28.11.2014  in  W.P.
No. 36241 of 2014 suspended the proceedings dated 12.08.2014 of the  CEO  by
which he had directed the Vice- Chairperson to act as  Chairperson,  as  was
already done in identical  Writ  Petition  No.  31113/2014  by  order  dated
12.11.2014.
31.   Against the  said  orders,  i.e.  order  dated  12.11.2014  passed  in
W.P.No. 31113 of 2014 and order dated 28.11.2014  passed  in  Writ  Petition
No. 36241/2014, two writ appeals bearing W.A. Nos. 1484  and  1485  of  2014
were preferred.
32.   On 01.12.2014, the appellant filed application bearing WAMP  No.  3690
of 2014 in W.A. No. 1386/2014 and W.A.M.P. No. 3691  of  2014  in  W.A.  No.
1388 of 2014 inter alia praying for considering the additional documents  in
support of his  contention  that  there  is  no  vacancy  for  the  post  of
Chairperson.
33.   By impugned interim order dated  10.12.2014  passed  in  W.A.M.P.  No.
3416 of 2014 in W.A. No. 1386 of 2014 and W.A.M.P. No. 3418 of 2014 in  W.A.
No. 1388 of 2014,  the  Division  Bench  directed  the  Vice-Chairperson  to
discharge the functions of the Chairperson until further orders and  further
restrained the respondents from filling up the vacancy of  Chairperson.  The
Division Bench also directed  the  District  Judge  to  decide  the  pending
Election Petitions within three months and posted the  appeals  for  hearing
after two months.
34.   Against the aforesaid interim order, the  appellant  has  filed  these
appeals by way of special leave before this Court.
35.   Mr. P.P. Rao, learned senior  counsel,  appearing  for  the  appellant
while  assailing  the  legality  and  correctness  of  the  impugned   order
contended that the Division Bench of the High Court erred  in  allowing  the
interlocutory applications  filed  by  respondent  No.1  herein  and  giving
impugned directions. He submitted that in the light of well  reasoned  order
passed by the learned Single Judge allowing the writ petitions filed by  the
appellant     herein     and     keeping     his     disqualification     of
membership/Chairpersonship under suspension till disposal  of  the  election
petitions, both intra court appeals and applications  had  virtually  become
infructuous and hence were liable to be dismissed as such.
36.   Learned senior counsel then contended that no  prima  facie  case  was
made out for passing the impugned order because  the  appellant  herein  had
already resumed the office of the Chairperson on 08.11.2014 pursuant to  the
order dated 07.11.2014 passed by the learned Single Judge.
37.   Learned counsel pointed out that once the appellant resumed  the  post
of the Chairperson pursuant to order passed by  the  learned  Single  Judge,
the only direction that should  have  been  given  while  disposing  of  the
appeal/application by the Division  Bench  was  to  decide  the  appellant's
election petitions by the Ist Additional District Judge,  Ongole  on  merits
expeditiously.
38.   Learned Counsel further contended that even  assuming  that  the  High
Court could go into the merits of the  controversy,  though  it  should  not
have, yet it was the appellant who was able to make out prima facie case  as
was rightly held by the learned Single Judge in his favour when  he  allowed
appellant's  writ  petition  arising  out  of  the  interim  order  of   the
Additional District Judge.
39.   Referring to Rules 21 and  22,  learned  Counsel  contended  that  the
alleged whips issued by the TDP in relation  to  the  election  in  question
were not legal because it did not  satisfy  the  requirements  of  the  twin
rules. Learned Counsel while criticizing the manner in  which  the  Division
Bench recorded certain findings against the well settled principles  of  law
and contended that the impugned order besides being  interim  in  nature  is
wholly legally unsustainable and hence deserves to be set aside.
40.   In contra, Mr. A.K. Ganguli,  learned  senior  counsel  appearing  for
respondent No.1, while supporting the  impugned  order  contended  that  the
same being interim in nature, no interference is called  for  under  Article
136 of the Constitution of India.
41.   Having heard the learned Counsel for the parties  and  on  perusal  of
the record of the case and the written submissions, we  find  force  in  the
submissions of the learned senior counsel for the appellant.
42.   The short question, which arises for consideration in  these  appeals,
is whether the Division Bench was justified  in  allowing  the  applications
filed in pending writ appeals  and  was,  therefore,  justified  in  issuing
mandatory directions?
43.   The impugned directions read as under:
“We, therefore, direct the Vice-Chairperson, until further  orders  of  this
Court, to discharge the  functions  of  the  Chairperson  in  terms  of  the
aforesaid  legal  provision.   However,  we  restrain   all   the   official
respondents from taking any steps or further steps to fill  up  the  vacancy
which resulted because of the disqualification order.

      It would be ideal if the District Judge decides the matter pending  on
his file within three  months  instead  of  six  months  from  the  date  of
communication of this order.

      These two appeals will come up for hearing two months hence.

      WAMPs are ordered accordingly.”

 The aforementioned directions are based on following two findings  recorded
by the High Court:
       “We  are  of  the  opinion  that  until  and  unless  the  order   of
disqualification is set aside, it remains operative.  Unlike the Court,  the
Collector has no power to grant an order of injunction.   In  our  view,  of
course, prima facie, the order of suspension of the learned Trial  Judge  in
the  above  legal  and  factual  scenario  is  futile  and  cannot  even  be
implemented.”

      “…..We think that some sort  of  workable  interim  order  was  passed
keeping in view the balance  of  convenience,  as  under  the  Constitution,
there is no express provision that in case  of  vacancy  in  the  office  of
Prime Minister, anyone will function as a Prime Minister, as a Head  of  the
Council of Ministers.  On the contrary, on the vacancy, the  entire  Cabinet
would stand dissolved.”

44.   In our considered opinion, the aforementioned  two  findings  are  not
legally sustainable for the reasons mentioned infra.
45.   It is a well settled principle of  law  that  the  Courts  are  always
vested with inherent and statutory power to stay/restrain the  execution  of
the action impugned in the lis during pendency of the lis. These powers  are
contained in Order 39 Rules 1and 2, and Order 41  Rule  5  of  the  Code  of
Civil Procedure, 1908.
46.   This Court in Mulraj vs. Murti Raghunathji Maharaj,  AIR 1967 SC  1386
 had the occasion to take  note  of  this  well  settled  principle  wherein
Justice  K.N.  Wanchoo  speaking  for  the  Bench   explained   the   subtle
distinction between the grant of  injunction  and  stay  and  explained  the
effect of both including consequence after their termination.
47.   Keeping in view  this  well  settled  principle,  which  we  need  not
elaborate herein, we are of the view that the Division Bench was  not  right
in observing that so long as the  order  of  disqualification  was  not  set
aside, it remained operative.
48.   In our considered view, the Division Bench failed to see that so  long
as the final adjudication is not done in accordance with law  on  merits  in
the election petitions, the District Court was  vested  with  the  power  to
pass appropriate interim orders in relation to  the  impugned  action  under
Section 22-A of the Act which reads as under:

“22-A Bar of jurisdiction: No order passed or proceedings  taken  under  the
provisions of this Act, shall be called in question in  any  Court,  in  any
suit, or application, and no  injunction  shall  be  granted  by  any  Court
except District Court in respect of any action taken or about  to  be  taken
in  pursuance  of   any   power   conferred   by   or   under   this   Act.”
                       (Emphasis supplied)


49.   The Division Bench also failed to appreciate that once writ  petitions
filed by the appellant herein were allowed on 07.11.2014 by  suspending  the
proceedings dated 11.08.2014, the respondents had no  option  but  to  allow
the appellant to function as the Chairman of ZPP.
50.   Similarly  the  Division  Bench  was  also  not  right  in  giving  an
illustration quoted above in support of the impugned order. In our  opinion,
the illustration is wholly misplaced and has nothing to do  with  the  short
question involved herein.
51.   Now coming  to  the  issue,  we  find  that  indisputably  though  the
District Court declined to grant any injunction to the appellant  for  grant
of any interim order in his favour but the learned  Single  Judge  by  order
dated 7.11.2014 in W.P.Nos. 30790 of 2014 had stayed the  operation  of  the
disqualification order dated 11.8.2014 passed by the District Collector.
52.   In our considered opinion, the effect of the  suspension  order  dated
07.11.2014  of  the  learned  Single  Judge   was   that   the   appellant's
disqualification from the post of member of ZPTC and the Chairperson of  ZPP
was kept in abeyance till the disposal of the election petitions.  In  other
words, no effect was to be given  to  the  appellant's  disqualification  in
relation to his status as member and the Chairperson till  the  disposal  of
the election petitions.
53.    It  is  also  not  in  dispute  that   the   learned   Single   Judge
simultaneously in other two pending writ  petitions  (W.P.No.31113  of  2014
and W.P.No.36421 of 2014) by separate interim orders  one  dated  12.11.2014
and other dated 28.11.2014  had stayed the order dated 12.08.2014  by  which
the Vice- Chairperson of the ZPP was asked to assume the charge of the  post
of Chairperson and this stay was in operation.
54.   In the light of these undisputed facts, we are of the view that  there
was no legal impediment for the appellant to have assumed the  post  of  the
Chairperson, ZPP, Prakasam District,  which  he  did  assume  on  08.11.2014
pursuant to the order dated 07.11.2014 of the  learned  Single  Judge.  Once
the appellant assumed the office of  the  Chairperson,  the  Division  Bench
should have dismissed the  interlocutory  applications  as  having  rendered
infructuous because  the  prayer  made  therein,  namely,  to  restrain  the
appellant from assuming the office of the Chairperson and asking  the  vice-
Chairperson to assume the charge of the Chairperson was already  implemented
prior to consideration  of  the  applications  and  there  was  no  apparent
justification to oust  the  appellant  from  the  post  of   Chairperson  by
another interim order.
55.   In our considered opinion, the impugned order of  the  Division  Bench
in directing removal of the appellant  from  the  post  of  Chairperson  and
asking the Vice-Chairperson to take over the charge of  the  Chairperson  in
his place is not only untenable in law but also perverse.
56.   Though learned senior counsel for the appellant also urged the  issues
relating to legality of the whip issued by the  TDP  contending  inter  alia
that it was not in conformity with the requirements of  Rules  etc.  but  we
refrain from going into this question at this stage  in  these  appeals  for
the simple reason  that  these  issues  are  sub  judiced  in  the  election
petitions and hence need to be tried by the District   Judge  on  merits  in
accordance with law as directed by  the  learned  Single  Judge  vide  order
dated 7.11.2014.
57.   This takes us to the last  submission  urged  by  the  learned  senior
counsel for respondent No.1 that impugned order  being  interim  in  nature,
this Court should not interfere  in  the  same  under  Article  136  of  the
Constitution of India. We do not agree with this submission.
58.   In our considered view, if we find that the  reasoning  given  by  the
High Court  while  passing  the  interim  order   is  perverse  and  legally
unsustainable being against the settled principle of law laid down  by  this
Court  then  interference  of  this  Court  in  such  order  is  called  for
regardless of the nature of the order impugned in appeal.
59.   In this case, having noticed that the two reasonings  extracted  above
are wholly unsustainable being against the well settled  principle  of  law,
it is necessary for this Court to interfere.
60.   The fate of the appellant about  his  membership  and  Chairpersonship
would depend upon the outcome of the election petitions.
61.   Let the election petitions be decided within  3  months  as  an  outer
limit from the date of this Court.
62.    In  view  of  foregoing  discussion,  the  appeals  succeed  and  are
accordingly allowed. Impugned order is set aside. As a consequence, all  the
pending appeals/petitions before the High Court also stand finally  disposed
of in the light of this judgment because there remains nothing for the  High
Court now to decide in pending appeals/writ petitions.
 S.L.P.(c) Nos. 5896-5897 of 2015
In view of the detailed judgment passed in  the  appeals  @  S.L.P.(c)  Nos.
36764 of 2014 and  36773  of  2014,  these  special  leave  petitions  stand
disposed of accordingly.

                     ………...................................J.
                                  [J. CHELAMESWAR]


                  …...……..................................J.
                               [ABHAY MANOHAR SAPRE]     New Delhi;
September 15, 2015.
-----------------------
31

The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.-2015 S.C.MSKLAWREPORTS In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas vs. State of Assam (2013)12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. The materials on record when judged on the touch stone of the legal principles adumbrated hereinabove, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, we are constrained to hold that it would be wholly un-safe to sustain the conviction of the appellant under Section 13(1)(d)(i)&(ii) read with Section 13(2) of the Act as well. In the result, the appeal succeeds. The impugned judgment and order of the High Court is hereby set-aside. The appellant is on bail. His bail bond stands discharged. Original record be sent back immediately. -2015 S,C,MSKLAWREPORTS

         The proof of demand of  illegal  gratification,  thus,  is   the gravamen of the offence under Sections 7 and  13(1)(d)(i)&(ii)  of  the  Act and in absence thereof, unmistakably the charge therefor, would fail.   Mere acceptance of any amount  allegedly  by  way  of  illegal  gratification  or recovery thereof, dehors the proof of demand, ipso facto, would thus not  be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove  the  demand for illegal gratification would be fatal and mere  recovery  of  the  amount from the person accused of the offence under Sections 7 or  13  of  the  Act would not entail his conviction thereunder.-2015 S.C.MSKLAWREPORTS
  In reiteration of the golden principle which  runs  through  the web of administration of justice in criminal  cases,  this  Court  in  Sujit Biswas vs. State of Assam (2013)12 SCC 406 had held that suspicion,  however grave, cannot  take the place of proof and the prosecution cannot afford  to rest its case  in the realm of “may be” true but has to upgrade  it  in  the domain of “must be” true in order to steer clear  of  any  possible  surmise or conjecture.  It was held, that the Court must ensure that miscarriage  of justice is avoided and if in the facts and  circumstances,   two  views  are plausible, then the benefit of doubt must be given to the accused.     The materials on record when judged on the touch stone  of   the legal principles adumbrated hereinabove, leave no manner of doubt  that  the prosecution, in the instant case, has failed to  prove  unequivocally,   the demand of illegal gratification and, thus, we are constrained to  hold  that it would be wholly un-safe to sustain the conviction of the appellant  under Section 13(1)(d)(i)&(ii) read with Section 13(2)  of the Act  as  well.   In the result, the appeal succeeds.  The impugned judgment  and  order  of  the High Court is hereby set-aside.  The appellant is on bail.   His  bail  bond stands discharged.    Original record be sent back immediately. -2015 S,C,MSKLAWREPORTS