Section 86(7) of the Act reads as follows:- “86. Trial of election petitions – (1-6) xxxxx (7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of which the election petition is presented to the High Court for trial.”=… ‘At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper—no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.’” 19. A voter casts his vote as a responsible citizen to choose the masters for governing the country. That being the trust of the electorate in an elected candidate, when he faces an assail to his election, it should be his sanguine effort to become free from the assail in the election petition and work with attainment and not take shelter seeking adjournments with the elated hope that he can be triumphant in the contest by passage of time. This kind of attitude has to be curbed from all angles because law does not countenance it. 20. We are absolutely conscious that in this case the election petitioner has also filed an application for early determination of the preliminary objection. The respondent, the elected candidate, has filed series of applications. We are of the convinced opinion that the election petition pending before the High Court has to be decided with extreme alertness and in quite promptitude. As the court has not framed issues, it shall proceed to frame issues. Thereafter, the evidence shall commence and the court shall, regard being had to the statutory command and the norms in a democratic polity, dispose of the election petition by end of February 2016. All the miscellaneous applications shall be decided at the time of final hearing so that the procrastination is totally ostracised. With the aforesaid observations and directions, the appeal stands disposed of. There shall be no order as to costs.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.8063  of 2015
                        (@ SLP(C) NO. 15813 OF 2015)



Pukhrem Sharatchandra Singh       ...   Appellant

                                Versus

Mairembam Prithviraj @ Prithibiraj Singh ...       Respondent




                               J U D G M E N T



Dipak Misra, J.
      What ordinarily would have entailed dismissal  of  the  special  leave
petition treating it with loathe, regard being had  to  the  nature  of  the
order passed by the learned Single Judge in Misc. Case (E.P) No. 1  of  2012
in Election Petition No. 1 of 2012 as he had only adjourned the matter,  but
the chronology of events, the ultimate  consequence  that  would  emerge  by
efflux of time, the command of the provision contained in Section  86(7)  of
the Representation of the People Act, 1951 (for brevity, “the  Act”),  every
conceivable stand adopted in a  dexterous  manner  by  the  respondent,  the
elected  candidate,  harbouring  the  notion  that  he  singularly  has  the
intellectual imperialism, which has the  effect  potentiality  to  frustrate
and defeat the election trial, for the High Court has not even been able  to
frame issues lest proceed with the trial, has impelled us to  interfere  and
write a verdict.  It needs no special emphasis to state  that  causation  of
delay in the conclusion of the trial  of  an  election  petition  leaves  an
impression that the elected candidate has the skilfulness to enjoy his  full
term without  being  concerned  or  bothered  about  the  challenge  to  his
election.  As it appears, he does not perceive the pendency  as  hanging  of
the sword of Damocles or even if it is so, he believes that by his  hypnotic
power he can make it hang in the air so that the threat becomes totally non-
existent.  Either way, it depicts a sad state of things.
2.    The necessary facts.  The appellant, a resident of Phairembam  Leikai,
Morang located within the  27-Moirang  Assembly  Constituency  of  Bishnupur
District, Manipur, was a candidate in the 10th Manipur Legislative  Assembly
Election  from  he  said  Constituency.    The  election  for  the   Manipur
Legislative Assembly was held on 28.01.2012 and the appellant  contested  as
a candidate from the aforementioned  constituency  being  nominated  by  the
Nationalist  Congress  Party  (“NCP”  for  short).   The  respondent  became
successful in the election and was declared  as  a  member  of  the  Manipur
Legislative Assembly.  It is apt to note here that at the time of  scrutiny,
the appellant had objected to  the  nomination  of  the  respondent  as  per
Section 36(2) of the Act on the ground  that  he  had  failed  to  file  the
proper affidavit as prescribed under Article 173  of  the  Constitution  and
further the affidavit was a forged one inasmuch as he had falsely stated  at
paragraph 9 of the affidavit dated 06.01.2012 that his  highest  educational
qualification is MBA, and he had passed out from the Mysore  University  and
that apart the said affidavit also contained certain other facts which  were
incorrect and he had also not subscribed to the oath  before  the  Returning
Officer or any competent authority as prescribed by the Election  Commission
of  India.   The  Returning  Officer,  after  affording  an  opportunity  of
hearing, declined to reject the nomination.  After the  election  was  over,
the counting of votes took place and the  respondent  was  declared  as  the
elected candidate.
3.    The appellant  challenged  the  election  before  the  High  Court  of
Manipur at Imphal in Election Petition  No.  1  of  2012.   As  the  factual
narration would unveil, the respondent filed  the  written  statement  after
two years to the main election petition  and  during  the  pendency  of  the
election petition, the returned  candidate  filed  number  of  miscellaneous
applications.  It is pertinent to refer to the said applications, as Mr.  N.
Kumarjit,  learned  senior  counsel  for  the  appellant  has  laid  immense
emphasis them.  We think it appropriate, for the sake  of  completeness,  to
reproduce the same:-

“1.   Misc. Case (EP) No.1 of 2012 as preliminary objection  on  the  ground
of maintainability of Election Petition No. 1 of 2012 – filed on  27-06-2012
and the same is pending.

2.    Misc. Case (EP) No. 4 of 2012 for  amendment  of  his  application  in
Misc. Case (EP) No. 1 of 2012. The same is partly allowed on 06-02-2013.

3.    Misc. Case (EP) No.1  of 2013 for impleading the Returning Officer  of
the election and the same is rejected on15-04-2014.

4.    Misc. Case (EP) No. 5 of 2014 filed by the  respondent  for  amendment
of application in Misc. Case (EP) No. 4 of 2014 was also allowed  on  14-05-
2014.

5.    Misc. Case (EP) No. 4 of 2014 filed by the  respondent  for  condoning
the delay in filing the written statement was allowed on 02-06-2014.

6.    On 02-06-2014 filed another misc. application  i.e.  Misc.  Case  (EP)
No. 6 of 2014 for dismissing the Election Petition taking  the  ground  that
the Challan Copy for depositing cost under section 117 of the RP  Act,  1951
is not signed by the petitioner.  The same is pending.

7.    Misc. Case (EP) No. 8 of  2014  filed  for  condonation  of  delay  in
filing the misc. application again for amendment of  the  misc.  application
in Misc. Case (EP) No. 1 of 2012 was allowed on 09-09-2014.

8.    Misc. Case (EP) No. 9  of  2014  filed  for  amendment  of  the  Misc.
Application  third time in Misc. Case (EP) No. 1 of 2012 was allowed on  09-
09-2014.

9.    Misc. Case (EP) No. 10 of 2014 filed for  dismissal  of  the  election
petition on the ground that election petition is  incomplete  was  withdrawn
on 05-11-2014.

10.   On 14-01-2015 filed another misc. application  i.e.  Misc.  Case  (EP)
No. 1 of 2015 for dismissal of the election petition stating that  no  cause
of action is disclosed.  The same is pending.”

4.    At this juncture, it is relevant to mention that the High Court  while
dealing with M.C. No. 4 of 2012 whereby the respondent had sought  amendment
to his preliminary  objection  pertaining  to  the  maintainability  of  the
election petition had allowed the amendment except  the  proposed  amendment
in respect of paragraph  5(F).   Against  the  said  order,  the  respondent
preferred an appeal by special leave i.e. Civil Appeal No.  10599  of  2013.
This Court recorded the original stand and the amended one and came to  hold
as follows:-

“We have considered  the  entire  issue.   In  our  opinion,  the  aforesaid
amendment would in no manner change the nature of  the  plea  taken  by  the
appellant.  Reading of the entire paragraph 5 of  the  MC  (PE)  1  of  2012
clearly shows that the appellant has claimed that the Election  Petition  is
not signed by the election  petitioner/respondent  herein.   We,  therefore,
find merit in the submission made by Mr. Jaideep Gupta  that  the  aforesaid
amendment also has to be allowed in the interest of justice.

Consequently, the appeal is  allowed.   The  order  of  the  High  Court  is
modified to the effect that paragraph ‘F’ can also be amended,  as  proposed
by the appellant.”

5.    The said order was passed  on  19.11.2013.   It  is  asserted  in  the
memorandum of appeal that the respondent filed Misc.  Case  E.P.  No.  1  of
2013 for impleading the Returning Officer as respondent no.2  and  the  said
application has not been disposed of and the matter was  adjourned  on  many
an occasion.  This situation  compelled  the  election  petitioner  to  file
Misc. Case E.P. No. 2 of 2013 dated 11.12.2013 to hear the case  on  day  to
day  basis.  Eventually  on  3.4.2014,  the  respondent  filed  the  written
statement.
6.    As the case was not being taken up, as averred,  the  appellant  filed
an application forming the subject matter of Misc. Case E.P. No. 7  of  2014
to  dispose  of  the  election  petition  on  a  preliminary  issue  on  the
foundation that the respondent had filed a false affidavit while  submitting
his nomination papers which was evincible from the  admission  made  in  the
written statement.  The matter was adjourned from time to time.  Hence,  the
present appeal, by special leave, has been filed challenging the  manner  in
which it is conducted and the dilatory tactics ingeniously  adopted  by  the
respondent to procrastinate the hearing of the election petition.
7.    When the matter was listed  on  the  first  occasion,  we  had  issued
notice fixing a returnable date.  Despite service  of  notice,  no  one  has
entered appearance on behalf of the respondent.
8.    It is interesting to note that the election petition was taken  up  by
the High Court on 24.8.2015.  The learned Single  Judge  on  that  date  has
passed the following order:-
“When the matter has been put up for hearing today, it  has  been  submitted
by Mr. Iswarlal, learned counsel for the  respondent  that  the  respondents
have filed an  SLP  before  the  Hon’ble  Supreme  Court  being  S.L.P.  No.
15813/2015 and the  Hon’ble  Supreme  Court  has  fixed  on  23.09.2015  for
hearing and prays that the matters be taken up after disposal  of  the  said
SLP.

Mr. N. Kumarjit, learned senior counsel  for  the  petitioner  submits  that
since no stay order has been passed there is no impediment on  the  part  of
this Court to proceed with the Election Petition.   However,  Mr.  Kumarjit,
learned senior counsel seeks some time  to  take  necessary  instruction  in
this regard.  List these matters on 09.09.2015 as prayed by the parties.”

9.     We  have  reproduced  the  said  order  only  to  indicate  that  the
adjournment  was  sought  by  the  respondent  and  not  by   the   election
petitioner.  The adroit effort to cause delay is absolutely  manifest.    It
is submitted by Mr. N. Kumarjit, learned senior counsel  for  the  appellant
that despite the statutory provision contained in Section 86(7) of  the  Act
that every election petition shall be tried  as  expeditiously  as  possible
and endeavour shall be made to conclude the trial  within  six  months  from
the date on which the election petition is presented to the High  Court  for
trial, the same has not been kept  in  view  and  the  respondent  has  been
successful in getting the matter adjourned on numerous occasions  by  filing
variety of applications.  Learned senior counsel would further  submit  that
the respondent chose not to file the written statement  for  two  years  and
the intention is to see that the term is over.  He has  also  apprised  this
Court that issues have not been framed.
10.   Section 86(7) of the Act reads as follows:-
“86.  Trial of election petitions – (1-6) xxxxx
(7)   Every election petition shall be tried as  expeditiously  as  possible
and endeavour shall be made to conclude the trial  within  six  months  from
the date of which the election petition is presented to the High  Court  for
trial.”

11.   While dealing with the role of Election Tribunal  and  the  conception
of disposal of a challenge to election, a three-Judge Bench in Satya  Narain
v. Dhuja Ram[1] has observed that:-
“Keeping  in  the  forefront  the  proper  functioning  of  democracy,   the
principal object of the Act is purity  of  elections.  When,  therefore,  an
election of a returned candidate is challenged under  the  Act,  expeditious
trial of the election dispute is sought to be enforced  by  the  Legislature
making all safeguards against delay. Trial has to be  necessarily  expedited
to rid the candidate as well as the constituency interested  in  the  result
of the election, of any taint or suspicion of corrupt  practices  which  are
again clearly enumerated in the Act. To take, therefore,  another  important
object of the Act viz. expeditious disposal  of  an  election  petition,  by
Section 86(b) “the trial of  an  election  petition  shall,  so  far  as  is
practicable consistently with the interests of justice  in  respect  of  the
trial, be continued from day to day until its conclusion,  unless  the  High
Court finds the adjournment of the trial beyond  the  following  day  to  be
necessary for reasons to be recorded”. Again  under  Section  86(7),  “every
election petition shall be tried as expeditiously as possible and  endeavour
shall be made to conclude the trial within  six  months  from  the  date  on
which the election petition is presented  to  the  High  Court  for  trial”.
Further Section 87(1) introduces the Civil Procedure Code  only  subject  to
the provisions of the Act and of any rules made  thereunder.  Section  87(2)
makes a deeming provision for application of the Evidence Act  only  subject
to the Acts. Therefore, there is no scope for free play in  the  application
of the provisions of those two Acts. The very object  of  expeditious  trial
will be defeated if the presentation of  the  election  petition  should  be
treated casually and lightly permitting all kinds of devices  to  delay  the
ultimate trial.  The  purpose  of  enclosing  the  copies  of  the  election
petition for all the respondents is to enable quick despatch of  the  notice
with the contents of the  allegations  for  service  on  the  respondent  or
respondents so that there is no delay in the  trial  at  this  very  initial
stage when the election petition is presented.  If  there  is  any  halt  or
arrest in progress of the case, the object of the  Act  will  be  completely
frustrated. We are, therefore, clearly of opinion that  the  first  part  of
Section 81(3) with which we  are  mainly  concerned  in  this  appeal  is  a
peremptory provision and total non-compliance  with  the  same  will  entail
dismissal of the election petition under Section 86 of the Act.”
                                                         [Emphasis supplied]

12.   In P. Nalla Thampy Thera v. B.L. Shanker[2], this Court while  dealing
with the justification of granting one adjournment opined as follows:-
“The High Court was justified in giving  only  one  adjournment  as  a  last
chance and fixing the trial on 9-3-1981, in view of  the  statutory  mandate
that an election petition shall be disposed of as far as practicable  within
six months from the  date  of  presentation  of  the  election  petition  as
required by Section 86(7) of the Act.”

13.   In F.A. Sapa v. Singora[3], another three-Judge Bench, in a  different
context stated that if the vexatious applications are entertained, it  would
defeat the very object of  expeditious  disposal  of  election  petition  as
envisaged in Section 86(7) of the Act.
14.   From the aforesaid authorities, it is quite  clear  that  an  election
petition has to be decided in quite promptitude as there  is  an  obligation
cast upon the Court to dispose of the same within a period  of  six  months.
Engrafting a provision in the nature  of  Section  86(7)  of  the  Act,  the
legislative intendment is clear that the Court has to endeavour  to  dispose
of an election petition as expeditiously as possible and not  to  allow  the
parties to  take  resort  to  unnecessary  adjournments  or  file  vexatious
applications.
15.   In the case at hand, as we have  stated,  the  elected  candidate  has
been taking time at his own pleasure and leisure and filing applications  as
he desired giving vent to his whim and  fancy  and  the  Court  has  granted
adjournment in an extremely liberal manner.  All the aspects  can  be  taken
exception to and they really run counter to the  conception  of  expeditious
disposal
16.   At this juncture,  we  may  state  without  any  hesitation  that  the
fundamental purpose for expeditious disposal of an election petition  is  to
sustain the purity of parliamentary democracy.  The  concept  of  purity  of
democracy has been emphatically stated in Rameshwar  Prasad  and  others  v.
Union of India and another[4].
17.   Recently, in Manoj Narula v. Union of India[5], majority view  in  the
Constitution Bench is to the following effect:-
“Democracy, which has been best defined as the government of the people,  by
the people and for the people, expects prevalence  of  genuine  orderliness,
positive propriety, dedicated discipline and sanguine sanctity  by  constant
affirmance of constitutional morality which is  the  pillar  stone  of  good
governance. While dealing with the concept of  democracy,  the  majority  in
Indira Nehru  Gandhi  v.  Raj  Narain[6],  stated  that  “democracy”  as  an
essential feature of the Constitution is unassailable.  The  said  principle
was reiterated in T.N. Seshan, CEC of India v. Union of India[7] and  Kuldip
Nayar v. Union  of  India[8].  It  was  pronounced  with  asseveration  that
democracy is the basic and fundamental structure of the Constitution.  There
is no shadow of doubt that democracy in India is a product of  the  rule  of
law and aspires to establish an egalitarian social order. It is not  only  a
political philosophy but also an embodiment of constitutional philosophy.”

18.   In Mohinder  Singh  Gill  v.  Chief  Election  Commissioner[9],  while
laying emphasis on fundamental values of democracy  which  includes  holding
of free and fair  election  by  adult  franchise  in  a  periodical  manner,
Krishna Iyer, J. quoted the statement of Sir Winston Churchill which  is  to
the following effect:-
“2. … ‘At the bottom of all tributes paid to democracy is  the  little  man,
walking into a little booth, with a little pencil, making a little cross  on
a little bit of paper—no amount of rhetoric  or  voluminous  discussion  can
possibly diminish the overwhelming importance of the point.’”

19.   A voter casts his vote as a responsible citizen to choose the  masters
for governing the country.  That being the trust of  the  electorate  in  an
elected candidate, when he faces an assail to his  election,  it  should  be
his sanguine effort to become free from the assail in the election  petition
and work with attainment and not take shelter seeking adjournments with  the
elated hope that he can be triumphant in the contest  by  passage  of  time.
This kind of attitude has to be curbed from all angles because law does  not
countenance it.
20.   We are absolutely conscious that in this case the election  petitioner
has also filed an application for early  determination  of  the  preliminary
objection.  The respondent, the  elected  candidate,  has  filed  series  of
applications.  We are of the convinced opinion that  the  election  petition
pending before the High Court has to be decided with extreme  alertness  and
in quite promptitude.  As the court has not framed issues, it shall  proceed
to frame issues.  Thereafter, the evidence  shall  commence  and  the  court
shall, regard being had  to  the  statutory  command  and  the  norms  in  a
democratic polity, dispose of the  election  petition  by  end  of  February
2016.  All the miscellaneous applications shall be decided at  the  time  of
final hearing so that the procrastination is totally ostracised.
21.   With the aforesaid observations  and  directions,  the  appeal  stands
disposed of.  There shall be no order as to costs.

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



                                             ..........................., J.
    [Prafulla C. Pant]
New Delhi
October 01, 2015
-----------------------
[1]     (1974) 4 SCC 237
[2]     (1984) Supp. SCC 631
[3]     (1991) 3 SCC 375
[4]     (2006) 2 SCC 1
[5]     (2014) 9 SCC 1
[6]     1975 Supp SCC 1
[7]     (1995) 4 SCC 611
[8]     (2006) 7 SCC 1
[9]     (1978) 1 SCC 405

-----------------------
15

whether the Courts below were right in decreeing the Summary Suit without granting the relief of leave to defend to the defendant/appellant as envisaged under Order 37 Rule 3 C.P.C.? 11. Taking into consideration the totality of the facts and circumstances of the case, we are of the opinion that the defendant/appellant has made out a prima facie case of triable issues in the Suit which needs to be adjudicated. Therefore, the defendant is entitled to grant of unconditional leave to defend the Suit. Although certain other issues are raised by both the parties, in view of our finding that the defendant/appellant is entitled to leave to defend the Suit, we do not find it necessary to go into other issues at this stage. As regards the contention advanced on behalf of the respondent/plaintiff that the mere denial of liability by the appellant Bank saying that the Officer in charge of the Foreign Exchange Department of the appellant Bank was not authorized to give co-acceptance to the Bills and thereby alleging a fraud by the officials cannot be sustained as those are the internal affairs of the defendant Bank for which the plaintiff/respondent cannot be penalized and the international trade practices and banking regulations have to be respected, this Court need not to go in detail in respect of these issues when we have come to an irresistible conclusion that the appellant/defendant is entitled to defend the Suit. Hence, we are reluctant to give findings on any of these issues which may adversely affect the trial of the Suit. Accordingly, we allow the appeal by setting aside the judgment and decree passed by the Courts below. The appellant/defendant is granted unconditional leave to defend the Summons for Judgment in Summary Suit No. 1586 of 2001. The learned Single Judge of the High Court has to deal all the issues raised by the parties afresh and any observation made by this Court while dealing with this appeal should not be construed as an expression of this Court. There shall, however, be no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 8194 OF 2015
                               ARISING OUT OF
              SPECIAL LEAVE PETITION (CIVIL) NO. 33549 OF 2014


STATE BANK OF HYDERABAD                      … APPELLANT

VERSUS

RABO BANK                                    … RESPONDENT


                                  JUDGMENT

N.V. RAMANA, J.


      Leave granted.
2.    This appeal has been directed against the Judgment  and  Decree  dated
9th October, 2014 passed  by  the  Division  Bench  of  the  High  Court  of
Judicature at Bombay in Appeal No. 415 of 2014 arising out  of  Summons  for
Judgment No. 238 of 2008 in Summary Suit No.  1586  of  2001.  By  the  said
judgment, which is impugned herein, the Division Bench  of  the  High  Court
dismissed the appeal preferred by the appellant/defendant thereby  upholding
the Judgment of the learned Single Judge.
3.    In order to adjudicate the controversy between  the  parties,  at  the
outset it is necessary to cull out the facts of the case to  the  extent  of
deciding the dispute before us.
4.     The  respondent/plaintiff  is  a  banking  institution   located   in
Singapore and on behalf of its constituent namely  M/S  Gloland  (Far  East)
Pte. Ltd., the respondent/plaintiff carried on business  dealings  with  the
appellant/defendant. The constituent of the respondent  is  engaged  in  the
business of export of Chick Peas and it shipped a consignment to its  Indian
clients, namely, M/S Kothari Global Ltd. and M/S Marudhar Edible Oils  Ltd.,
while  handing  over  three  sets  of  relevant  documents  dated  4.2.1998,
24.2.1998 and 13.7.1998  to  the  respondent/plaintiff  for  collecting  the
payment  totaling  US  $  8,19,199.35   from   its   Indian   clients.   The
respondent/plaintiff   in   turn   forwarded   those   documents   to    the
appellant/defendant on  the  condition  of  releasing  them  to  the  Indian
clients  of  its  constituent  against  payment.   It   appears   that   the
appellant/defendant  did  not  receive  payment  from  the  clients  of  the
respondent and hence did not release the documents to them.
5.     While  the  things   stood   so,   on   9th   September,   1998   the
respondent/plaintiff sent a fax message  to  the  appellant  Bank  enquiring
whether they would accept Bills  of  Exchange  (Drafts)  payable  after  170
days, to which the appellant Bank conveyed its acceptance. Accordingly,  the
respondent sent four Bills of Exchange, all dated  9th  September,  1998  in
favour of the appellant Bank for an amount of US  $  8,19,198.75.  Again  on
21st September, 1998, the respondent sent another set of documents  together
with Bills of Exchange to  the  appellant  Bank  for  the  amount  of  US  $
11,12,428.54 for collection from the Indian clients of  constituent  of  the
respondent. The collection tenor was specified as 170 days  after  the  date
of Draft (Bill of Exchange). The respondent by a Telex  message  dated  23rd
October, 1998 instructed the appellant Bank to deposit the  payment  against
Bills  of  Exchange  totaling  US  $  19,31,627.89  into  their   New   York
Correspondent Bank viz., Bankers Trust Company  on  the  due  date  of  27th
February, 1999.
6.    When the appellant Bank did  not  remit  the  amount  even  after  the
expiry of due date, the respondent/plaintiff  on  9th  March,  1999  sent  a
Telex message to the appellant/defendant to remit the  proceeds  along  with
interest @ 9.75% for the late payment. It appears that on the same day,  the
appellant Bank replied to  the  respondent  denying  its  liability  on  the
ground that the manner and mode in which the  transactions  took  place  was
not in ordinary course of business and the acceptance given by  its  Kolkata
Branch at Burra Bazar appears to be in total  disregard  to  the  prevailing
procedure in Banks. It has also been informed to  the  respondent  that  the
matter has been entrusted to the  Central  Bureau  of  Investigation  (CBI).
This was followed by various correspondences exchanged between  the  parties
alleging and denying the liability till 31st March, 2001 on which  date  the
respondent filed Summary Suit No. 1586 of 2001 before the High Court.
7.      The   learned   Trial   Judge   fixed   the   liability    on    the
appellant/defendant and made absolute  the  summons  for  judgment  awarding
interest @ 9.75% p.a. w.e.f. 27th February, 1999 i.e. the maturity  date  of
Bills of Exchange, till realization of principal amount. Aggrieved  thereby,
the defendant/appellant filed an intra-Court appeal before  the  High  Court
which came to be dismissed by the Division Bench upholding the order of  the
learned Single Judge. Not satisfied with the Judgment  of  the  High  Court,
the appellant/defendant filed the appeal on hand by way  of  special  leave.
On 15th December, 2014, this Court while issuing  notice,  stayed  operation
of the impugned order of the High Court.
8.    Mr. Mukul Rohtagi, learned Attorney  General  for  India,  arguing  on
behalf of the appellant Bank submitted that the Single Judge as well as  the
Division Bench of the High Court were not justified in fixing the  liability
upon the appellant Bank. In the absence of an opportunity to  the  appellant
Bank to defend its case and file written statement in such a  case  where  a
huge amount of US $ 19,31,627.89 is  involved,  the  decision  of  the  High
Court cannot be appreciated  to  be  a  correct  one.  While  assailing  the
judgment of the High Court, learned  Attorney  General  submitted  that  the
respondent/plaintiff has no valid legal reason to institute the  Suit  under
Order 37, CPC. The Suit does not qualify the test of  Order  37  1(ii)(b)(i)
as there was no specific averment with respect to a “written  contract”  and
the averment so pleaded by the plaintiff/respondent is with respect  to  “an
agreement”. There was no consideration to the appellant Bank and merely  the
telex/fax  messages  do  not  constitute  a  written  contract  between  the
parties. The instruments in question (Bills of Exchange) did  not  bear  the
“acceptance” on behalf of the appellant Bank. The provisions  of  Negotiable
Instruments Act  mandate  that  the  “acceptance”  shall  be  given  by  the
drawee/acceptor by signing his assent on the face of the Bill  of  Exchange.
However, in the present case, no such endorsement of acceptance  is  present
on behalf of the appellant  Bank,  nor  any  document  was  appended  giving
acceptance. Merely the telex/fax messages, purportedly issued on  behalf  of
the  appellant  Bank,  cannot  give  rise  to  the  claim  advanced  by  the
plaintiff/respondent.  In  such  a  situation,  the  enforcement  is   clear
violation of public policy envisaged under Section 23 of the  Contract  Act.
The Head Office  of  the  appellant-Bank  has  already  instructed  all  its
Branches to prohibit even co-acceptance of Bills or purchase/discounting  of
Bills  accepted  by  other  Banks,  unless  otherwise  a  specific   written
confirmation is made by the respective controlling office of the  Bank.  The
telex/fax messages, on which the respondent has been relying  on,  were  not
issued with the authority of the appellant Bank. It was  purely  an  act  of
mischief by certain persons representing the clients of the  constituent  of
the respondent done with connivance of some officers of the  appellant-Bank,
and the High Court ought to have appreciated  this  fact.  Learned  Attorney
General   drawing   our   attention   to   an   affidavit   filed   by   the
defendant/appellant seeking leave to defend  the  Summary  Suit  enumerating
the factual aspects of the case, submitted that the  learned  Single  Judge,
ignoring the case of the defendant, decreed  the  Suit  making  Summons  for
Judgment absolute.  The Division Bench of the High Court  also  committed  a
grave error in  not  appreciating  the  legal  requirements  in  their  true
perspective and hence the judgments of the Courts below  are  liable  to  be
set aside.
9.    Learned senior counsel appearing for the respondent/plaintiff, on  the
other hand, supported the Judgment of the Courts below  and  submitted  that
the respondent/plaintiff has made the payment to the  exporter  M/S  Gloland
(Far   East)   Pte.   Ltd.   only   after   the   representation   of    the
appellant/defendant to accept the Bills of  Exchange.  The  conduct  of  the
appellant Bank in not fulfilling its obligation, on  a  bald  allegation  of
fraud made by its officials acting beyond their authority,  is  not  in  the
interest of justice. International banking activities  operate  on  implicit
faith and trust between the parties and  escaping  from  the  responsibility
showing a truncated reason of internal fraud, cannot be sustained. Even  the
reason of internal fraud as shown by the  appellant  Bank  is  not  strongly
based, because the tested telexes  sent  by  the  senior  officials  of  the
appellant Bank ensure their authenticity and leads to the  presumption  that
the message was sent under the authority of the Bank.  The  appellant  Bank,
in fact, had obtained letters of indemnity on stamp  paper  duly  signed  by
the  authorized  signatory  of  the  Indian  clients  of  the   respondent’s
constituent, thereby indemnifying the  appellant  Bank  in  respect  of  co-
acceptance for the tested telex messages.  Learned  senior  counsel  finally
submitted that there is no error apparent in the  judgments  of  the  Courts
below and the appeal deserves to be dismissed.
10.   Having heard learned counsel for the parties, the short question  that
falls for our consideration is  whether  the  Courts  below  were  right  in
decreeing the Summary Suit without granting the relief of  leave  to  defend
to the defendant/appellant as envisaged under Order 37 Rule 3 C.P.C.?
11.   We think that for  the  adjudication  of  the  said  question,  it  is
appropriate first to examine the  affidavit  filed  by  the  appellant  Bank
seeking leave to defend, after receiving Summons for Judgment. In  the  said
affidavit, it is categorically mentioned that the Suit in  question  is  not
maintainable to be a Summary Suit as per law. Paras 5 to 8 of the  affidavit
filed  by  the  Branch  Manager   and   the   Principal   Officer   of   the
Defendant/appellant, reads thus:
5)    I say that the plaintiff has filed the present  suit  in  March,  2001
praying for various reliefs as set out  therein.  The  plaintiff  thereafter
preferred the Summons for Judgment in the same in the month  of  June,  2001
being the Summons for Judgment No. 1305 of 2001. I crave leave to  refer  to
and rely upon the records and proceedings in respect  to  the  said  Summons
for Judgment as and when produced.

6)    The plaintiff thereafter withdrew the said  summons  for  judgment  on
24th February, 2003 with the liberty. The plaintiff  has  failed  in  taking
out the proceedings for amendment of the said summary  suit.  The  plaintiff
took out the Chamber Summons No. 576 of 2007 in April 2007, praying  of  the
various amendments to the summary suit. Thus, the said Chamber  Summons  was
taken out after a lapse of four years, when the plaintiff had preferred  the
summons for  judgment  in  the  said  suit.  This  clearly  shows  that  the
plaintiff has failed and neglected in prosecuting his rights under the  said
suit and there is a deliberate delay on the part of the plaintiff in  taking
out the chamber summons for the amendment of the said plaint.

7)    I say that the present suit is not maintainable  as  a  Summary  Suit.
The present suit is filed by the plaintiff in respect to  various  Bills  of
Exchange alleged to have been accepted by the  Defendant.  I  say  that  the
drawee is required to sign his assent on the Bill  of  Exchange  itself  and
not on any other part of the instrument/document as per  the  provisions  of
the Negotiable Instrument Act and as per the  practice  followed  by  Banks.
Further,  the  alleged  Bills/Suit  documents  including   Bills   are   not
admissible as they are not stamped as per the provisions of the  Stamp  Act.
If the drawee puts his signature  on  any  other  paper  than  the  Bill  of
Exchange, it would not be construed as acceptance under  the  provisions  of
the Negotiable Instruments Act.

8)    In the present  case,  admittedly  the  drawee  has  not  affixed  his
signature, showing the co-acceptance of the Bills, on the Bills.  Hence  the
alleged acceptance of the Bills of Exchange by the defendant as well as  the
drawee is not proper and the said Bills of Exchange cannot  be  said  to  be
duly accepted by the defendant as well as the drawee.

12.   Thus, the appellant/defendant by way of the  aforementioned  affidavit
took the plea that the contract between the  parties  was  not  a  concluded
contract and the Suit in question is barred  by  limitation.  Prior  to  the
present Suit, the plaintiff/respondent had earlier in the  year  2001  filed
another Suit preferring Summons for Judgment, but withdrew the same  in  the
year 2003. Only  after  taking  out  the  Chamber  Summons  seeking  various
amendments  after  a  lapse  of  four   years   in   the   year   2007   the
plaintiff/respondent preferred the Summons  for  Judgment  in  the  Suit  in
question, with an intention of deliberately delaying  the  process  of  law.
Such a vast delay of about four years clearly indicates  the  negligence  on
the part of the plaintiff in prosecuting its  rights  and  again  initiating
the proceedings after a lapse of four years time  is  clear  abuse  of  law.
Further plea taken by the defendant/appellant is that the  Suit  is  not  at
all maintainable merely for the reason that there  is  no  signature  giving
assent by the drawee on the face of Bills nor there  the  signature  of  the
defendant giving co-acceptance. In addition, the stamping on the  Bills  was
also not done as per the requirements of law. A clear stand has  been  taken
by the defendant/appellant in  the  affidavit  that  the  signature  of  the
drawee giving assent should be affixed on the face of the Bill  of  Exchange
itself under the provisions of the Negotiable Instrument Act and  all  Banks
follow the same principle. Besides, the Bills are not stamped following  the
principles of Stamp Act.
13.   We have further noticed  in  the  affidavit  that  the  defendant  has
levelled an allegation that drawer and drawee of the Bills  had  perpetrated
fraud on  the  defendant  with  the  collusion  of  some  officials  of  the
plaintiff  Bank  and  the  CBI  inquiry  on  this  issue  is  also  pending.
Pertinently, the Reserve Bank of  India  has  also  been  informed  on  this
matter reporting that a fraud had taken place. It is also important to  note
the strong allegation raised in the affidavit that besides  the  Suit  being
barred by limitation, the persons who signed the plaint were not  authorized
or empowered to file the Suit.
14.   Another glaring aspect in the case is that the Division Bench  of  the
High   Court   in   its   order    categorically    mentioned    that    the
appellant/defendant has not actually endorsed its acceptance  on  the  Bills
of Exchange. In spite of recording such a finding, the High Court held  that
the appellant/defendant has agreed to pay the amount due even  de  hors  the
Bills of Exchange, which is sufficient to grant a decree in  favour  of  the
respondent/plaintiff.
15.   As regards the entitlement of a defendant to the  grant  of  leave  to
defend, the law  is  well  settled  long  back  in  the  year  1949  in  Sm.
Kiranmoyee Dassi Vs. Dr. J. Chatterjee, AIR 1949 Cal 479,  in  the  form  of
the following propositions:
If the defendant satisfies the Court that he  has  a  good  defence  to  the
claim on its merits, the plaintiff is not entitled  to  leave  to  sign  the
judgment and the defendant is entitled to unconditional leave to defend.

If the defendant raised a triable issue indicating that he  has  a  fair  or
bona fide or reasonable defence although not a positively good  defence  the
plaintiff is not entitled to sign judgment and the defendant is entitled  to
unconditional leave to defend.


If the defendant discloses  such  facts  as  may  be  deemed  sufficient  to
entitle him to defend, that is to  say,  although  the  affidavit  does  not
positively and immediately made it clear that he has a defence,  yet,  shows
such a stage of facts as leads to the inference that at  the  trial  of  the
action he may be able to establish a defence to the plaintiff`s  claim,  the
plaintiff is not entitled to judgment  and  the  defendant  is  entitled  to
leave to defend but in such a case the court may in  its  discretion  impose
conditions as to the time or mode of trial but not as to payment into  court
or furnishing security.


If the defendant has no defence or the defence set up is  illusory  or  sham
or practically moonshine then ordinarily the plaintiff is entitled to  leave
to sign judgment and the defendant is not entitled to leave to defend.


If the defendant has no defence or  the  defence  is  illusory  or  sham  or
practically moonshine then although ordinarily the plaintiff is entitled  to
leave to sign  judgment,  the  court  may  protect  the  plaintiff  by  only
allowing the defence to proceed if the amount claimed is paid into court  or
otherwise secured and give leave to the defendant  on  such  condition,  and
thereby show mercy to the defendant by  enabling  him  to  try  to  prove  a
defence.


16.   It is also  noticed  that  the  law  as  enunciated  above,  has  been
followed by the Courts in several cases [See also : Santosh Kumar  Vs.  Bhai
Mool Singh, AIR 1958 SC 321, Milkhiram (India) (P) Ltd. Vs. Chamanlal  Bros,
AIR 1965 SC 1698, Mechelec Engineers &  Manufacturers  Vs.  Basic  Equipment
Corpn., (1976) 4 SCC 687 and Sunil Enterprises & Anr. Vs. SBI  Commercial  &
International Bank Ltd. (1998) 5 SCC 354].



17.   An analysis of the above principles  makes  it  clear  that  in  cases
where the defendant has raised a triable issue or a reasonable defence,  the
defendant is entitled to unconditional leave to defend. Leave is granted  to
defend even in cases where the defendant  upon  disclosing  a  fact,  though
lacks the defence but makes a positive impression  that  at  the  trial  the
defence would be established to the plaintiff’s claim.  Only  in  the  cases
where the defence set up is illusory or sham or practically  moonshine,  the
plaintiff is entitled to leave to sign judgment.



18.   Insofar as the question of maintainability of  the  Suit  in  question
under Order 37, CPC is concerned, this  Court  has  in  Neebha  Kapoori  Vs.
Jayantilal  Khandwala,  2008  (3)  SCC   770   observed   that   where   the
applicability of Order 37 itself is in question, grant of  leave  to  defend
may be permissible. The Court before passing a decree is  entitled  to  take
into consideration  the  consequences  therefor.  The  Courts  dealing  with
summary trials should act very carefully taking note  of  the  interests  of
both the parties. Merely on the ground that  the  defendant  may  resort  to
prolonged litigation by putting  forth  untenable  and  frivolous  defences,
grant of leave to defend cannot be declined. At the  same  time,  the  Court
must ensure that the defendant raises a real issue and not a sham  one.  The
Court  cannot  reject  the  defence  on  the  ground  of  implausibility  or
inconsistency. Before recording a finding of granting leave to  defend,  the
Court should assess the facts and come to the conclusion that if  the  facts
alleged by the defendant in the affidavit are established, there would be  a
good or even a plausible defence on those facts.



19.   Although the affidavit does not positively  and  immediately  make  it
clear that he had a defence, yet, it shows such a state of facts leading  to
the inference that at the trial of the action, the defendant may be able  to
establish a defence to the plaintiff`s claim the plaintiff is  not  entitled
to judgment and the defendant is entitled to leave to defend but in  such  a
case the Court may in its discretion impose conditions as  to  the  time  or
mode of trial but not as to payment into Court or furnishing  security  [See
: T. Sukhender Reddy Vs. M. Surender Reddy, 1998 (3) ALD 659].



20.   We are in total agreement with the view taken by  this  Court  in  Raj
Duggal Vs. Ramesh Kumar Bansal, 1991 Suppl.(1) SCC 191 that leave to  defend
the Summons for Judgment shall always  be  granted  to  the  defendant  when
there is a triable issue as to the meaning or correctness of  the  documents
on which the claim is based or the alleged facts are of  such  nature  which
entitle the defendant to interrogate or cross-examine the plaintiff  or  his
witnesses.

21.   In the case on hand, we have perused the material on record  including
the FIR dated 9th August, 1999 registered by the  CBI  at  the  instance  of
Chief Vigilance Officer, SBH and also the Charge Sheet  filed  by  the  CBI.
The charge sheet indicated the involvement of      Mr. Sudhir  Behra,  Chief
Manager of the appellant Bank at Burra Bazar  Branch,  Calcutta.  Acting  at
the requests of representatives from the Indian clients of the  respondent’s
constituent, the Chief Manager had induced some officers  of  the  appellant
Bank who were In-charge of  Foreign  Exchange  Department  to  issue  tested
telex messages of co-acceptance.  The  charge  sheet  further  alleges  that
these officers were not authorized to  issue  such  co-acceptances  and  the
motive behind their illegal  and  unauthorized  action  was  to  enable  the
constituent of the respondent to get their bills discounted by  jeopardizing
the interests of the appellant Bank. It is also on record that the trial  of
the said case was at the stage of evidence as on 13th November, 2014.
22.   Apart  from  these,  the  substantial  revelations  of  the  defendant
(appellant) in the  affidavit  coupled  with  the  views  expressed  by  the
Division Bench of the High Court makes  it  clear  that  there  are  certain
triable issues for adjudication and the defendant/appellant is  entitled  to
defend the Suit. The appellate side of the High Court ought  to  have  taken
into consideration the factual matrix  of  the  case  before  recording  its
finding.  Taking  into  consideration  the  totality  of   the   facts   and
circumstances  of   the   case,   we   are   of   the   opinion   that   the
defendant/appellant has made out a prima facie case  of  triable  issues  in
the Suit  which  needs  to  be  adjudicated.  Therefore,  the  defendant  is
entitled to grant of unconditional leave to defend the Suit.
23.   Although certain other issues are raised by both the parties, in  view
of our finding that the defendant/appellant is entitled to leave  to  defend
the Suit, we do not find it necessary  to  go  into  other  issues  at  this
stage.   As   regards   the   contention   advanced   on   behalf   of   the
respondent/plaintiff that the mere denial  of  liability  by  the  appellant
Bank saying that the Officer in charge of the  Foreign  Exchange  Department
of the appellant Bank was not authorized to give co-acceptance to the  Bills
and thereby alleging a fraud by the officials cannot be sustained  as  those
are  the  internal  affairs  of   the   defendant   Bank   for   which   the
plaintiff/respondent  cannot  be  penalized  and  the  international   trade
practices and banking regulations have to be respected, this Court need  not
to go in detail in  respect  of  these  issues  when  we  have  come  to  an
irresistible conclusion that the appellant/defendant is entitled  to  defend
the Suit. Hence, we are reluctant to give findings on any  of  these  issues
which may adversely affect the trial of the Suit.
24.   Accordingly, we allow the appeal by setting  aside  the  judgment  and
decree passed by  the  Courts  below.  The  appellant/defendant  is  granted
unconditional leave to defend the Summons for Judgment in Summary  Suit  No.
1586 of 2001. The learned Single Judge of the High Court  has  to  deal  all
the issues raised by the parties afresh and any  observation  made  by  this
Court while  dealing  with  this  appeal  should  not  be  construed  as  an
expression of this Court. There shall, however, be no order as to costs.

..................................J.
(RANJAN GOGOI)



……………................J.
(N.V. RAMANA)
New Delhi,
October 1, 2015

the question regarding the right of the petitioner’s pension. = Having regard to the fact that the disciplinary proceedings were initiated in the year 1994, and having regard to the prolonged litigation, we do not find it proper to remand the matter to any of the authorities, either original or appellate. The authorities having found the appellant to be unfit to continue in Police Service, we are of the view that the punishment of compulsory retirement, which is also a prescribed punishment, should have been the appropriate one to be imposed in the circumstances. Therefore, we set aside the order passed by the disciplinary authority as confirmed by the appellate authority on the punishment of dismissal of the appellant and order that the appellant be treated as compulsorily retired from service from the date of the original order, i.e., 22.11.1994. Needless also to say that, in case the appellant is otherwise entitled to any consequential reliefs on that account, the same shall follow.

                        IN THE SUPREME COURT OF INDIA

                       CIVIL  APPELLATE  JURISDICTION

                      CIVIL APPEAL NO.  8064   OF 2015
                  (Arising from S.L.P. (C) No. 10039/2014)


Rajinder Kumar                                     … Appellant (s)

                                   Versus

State of Haryana and another                 … Respondent (s)


                               J U D G M E N T

KURIAN, J.:



Leave granted.


The appellant was appointed as a constable under the first  respondent-State
on 24.12.1979. On the ground that he remained absent from duty while he  was
posted in police lines, Kurkshetra, Haryana on  three  occasions,  extending
to a total period  of  thirty  seven  days,  disciplinary  proceedings  were
initiated. He was  found  guilty  of  misconduct  and  a  major  penalty  of
dismissal  was  imposed  on  him  by   order   dated   22.11.1994   of   the
Superintendent of  Police,  Kurukshetra,  Haryana.  The  appeal  before  the
D.I.G. of  Police,  Ambala,  Haryana  was  dismissed,  and  that  order  was
challenged before the High Court in C.W.P. No. 16511 of 1997. The said  Writ
Petition was  disposed  of  by  Judgment  dated  26.05.2009.  The  operative
portion of the judgment reads as follows:



“It is, thus,  clear  that  the  finding  regarding  the  petitioner  having
committed  gravest  misconduct  cannot  be  faulted.  However,  reading  the
impugned order  against  the  backdrop  of  the  latest  exposition  of  law
(reproduced above). I find that the punishing authority has  not  considered
the question regarding  the  right  of  the  petitioner’s  pension.  In  the
circumstances,  the  writ  petition  is  allowed,  the  impugned  orders  of
punishment (Annexure P-3 and P-8) are set aside and the matter  is  remanded
back to the disciplinary authority for taking a fresh decision on the  above
aspect and pass a fresh  order  of  punishment  within  a  period  of  three
months. However, the order of reinstatement shall remain  in  abeyance  till
such fresh consideration and will depend upon the outcome of the same.”



The order of the learned Single Judge was taken up  in  intra  court  appeal
leading to the impugned Judgment dated 22.02.2013. The  Division  Bench  set
aside the judgment of the  learned  Single  Judge  and  dismissed  the  writ
petition. Aggrieved, the appellant approached this Court.

It is not in dispute that the appellant had put in around fifteen  years  of
service prior to his termination. The charge against the appellant was  only
of  unauthorized  absence  of  short  durations.  The   appellant   had   an
explanation for his absence, that he was taking treatment  in  the  District
Chest T.B.  and  Leprosy  Centre,  Kurukshetra,  Haryana,  for  his  chronic
tuberculosis. It appears, on that count, the  appellant  pleaded  for  mercy
before the Inquiry Officer. However, the Disciplinary  Authority,  by  order
dated 22.11.1994, passed an order dismissing  the  appellant  from  service.
The operative portion of the order dated 22.11.1994 reads as follows:



“In the case in hand the absence from duty for 37 days on the  part  of  the
defaulter was not an isolated act. Even prior to this as mentioned  earlier,
there have been repeated acts of remaining  absent  from  duty,  and  taking
lenient view of the matter, the defaulter had been let off by the  award  of
lesser punishment giving him an opportunity to  reform.  Despite  giving  an
opportunity to reform himself he continued to remain absent  from  duty  off
and on. Such a  misconduct  from  a  member  of  disciplined  force  is  not
expected, who has about 15 years of service  to  his  credit.  He  has  thus
proved himself to be incorrigible and thereby unfit to continue in  service.
Police service is a disciplined service and it requires to  maintain  strict
discipline. Laxity in this behalf erodes discipline in the  service  causing
serious affects in the maintenance of law and order.

      I thus award Constable Rajinder Kumar, 343/KKR  penalty  of  dismissal
from service with immediate effect.”



 In appeal, the appellant, inter alia, pleaded for mercy and  alteration  of
the punishment. His plea  was  rejected  by  the  appellate  authority.  The
operative portion of the order dated  21.04.1995  passed  by  the  appellate
authority, reads as follows:

“The appellant has further pleaded that the punishment  awarded  to  him  is
extreme. He is the only earning member of the  family.  He  has  prayed  for
leniency. I have perused  the  service  record  of  the  appellant.  He  was
enrolled in the police force w.e.f. 24/12/79. He has  rendered  the  service
of 15 ½ years. He remained absent on four occasions in  the  year  1986.  He
remained from 12/4/89 to 3/7/89. Again he remained absent for  33  days.  He
was awarded censured in 1986. Punishment of stoppage of two increments  vide
O.B. No. 530/94. He was also given punishment of stoppage of  one  increment
vide O.B. No. 523/94  for  consuming  liquor  on  duty.  Besides  these  the
appellant remained absent which were converted into the leave  of  the  kind
due. In these circumstances, it is fully proved that  the  appellant  is  an
habitual  defaulter.  His  continued  misconduct  has   fully   proved   him
incorrigible and complete unfit for police service. In  these  circumstances
he does not deserve  any  leniency.  In  the  case  of  appellant  the  only
punishment of dismissal can meet the ends of justice.  Therefore,  the  plea
of leniency is also rejected.”





It appears, both, the learned Single Judge as well as  the  Division  Bench,
dealt with the challenge on an entirely different angle, perhaps on  account
of the misconceived contentions raised by the appellant on  the  claims  for
pension. The reliance sought to be placed on Ghanshyam Dass Relhan v.  State
of Haryana and others[1] is of no assistance. In that case,  this  Court  in
fact  considered  the  difference  between  dismissal   from   service   and
resignation from service for the purpose of pensionary benefits and  it  was
held that the employee, on resignation being accepted, was  entitled,  under
the relevant rules, for retirement benefits, subject to his  completing  the
prescribed service. That decision apparently does not have any relevance  in
the case of the appellant. There cannot be any dispute  that  the  dismissal
from service entails forfeiture of  past  service  as  per  the  unambiguous
provisions  under  the  Punjab  Civil  Services  Rules,   1989.   The   only
contention, which should probably have weighed with the Court,  was  on  the
quantum of punishment in  the  given  factual  situation.  It  was  in  that
background,  this  Court  issued  a  limited  notice   on   04.04.2014   for
considering the only question of quantum of punishment.

It is not in serious dispute that the appellant  is  a  serious  patient  of
tuberculosis. According  to  the  disciplinary  authority  as  well  as  the
appellate authority, the appellant became completely unfit  for  service  in
view of the background of the unauthorized absence on many  occasions.  Once
a person  is  found  unfit  for  service  on  account  of  intermittent  and
unauthorized absence for  which  the  delinquent  though  has  a  reasonable
explanation, no doubt, there is  no  point  in  continuing  him  in  service
either by  reverting  him  or  by  imposing  punishments  like  stoppage  of
increment, etc. But the question is, whether dismissal is  the  only  option
in such situations where an employee is found unfit for service. We have  no
doubt in our mind that indiscipline of any sort cannot be tolerated  at  all
in a disciplined force. However, in the factual background of the  appellant
which we have referred to above, the disciplinary authority or at least  the
appellate authority, should have considered whether a punishment other  than
dismissal would have been appropriate and  whether  dismissal  is  the  only
punishment available and appropriate in the  circumstances.  The  fact  that
different punishments are prescribed under the rules shows that there  is  a
discretion vested on the competent authority to decide what  should  be  the
proper punishment taking note of the nature of misconduct, its  gravity  and
its impact on the service. Having regard to the facts and  circumstances  of
each case, the disciplinary authority has  to  take  a  proper  decision  on
punishment.

Having regard to the fact that the disciplinary proceedings  were  initiated
in the year 1994, and having regard to the prolonged litigation, we  do  not
find it proper to remand the  matter  to  any  of  the  authorities,  either
original or appellate. The authorities having  found  the  appellant  to  be
unfit to continue in Police Service, we are of the view that the  punishment
of compulsory retirement, which is  also  a  prescribed  punishment,  should
have  been  the  appropriate  one  to  be  imposed  in  the   circumstances.
Therefore, we set aside the order passed by the  disciplinary  authority  as
confirmed by the appellate authority on the punishment of dismissal  of  the
appellant and order that the appellant be treated  as  compulsorily  retired
from service  from  the  date  of  the  original  order,  i.e.,  22.11.1994.
Needless also to say that, in case the appellant is  otherwise  entitled  to
any consequential reliefs on that account, the same shall follow.

The appeal is disposed of as above. There shall be no order as to costs.

                                                              ..…….…..…………J.
               (T. S. THAKUR)


                                                                ..……………………J.
                 (KURIAN JOSEPH)
New Delhi;
September 30, 2015.
-----------------------
[1]    (2009) 14 SCC 506

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


-----------------------
8

the lodging of the FIR in the present case cannot be called to have been delayed unnecessarily We have gone through the record and considered the rival submissions. The distance between the place where Kulbir Singh was assaulted and the first hospital where he was taken, was about 11 KM. There he was given medical attention and then referred to Military Hospital, Jalandhar. Considering these facts, the lodging of the FIR in the present case cannot be called to have been delayed unnecessarily. In our view, the reporting was without any delay or deliberation and sets out true account of the incident. The assertions in the reporting are well supported and corroborated by the post-mortem conducted the next day. The injuries so found in the post-mortem are possible by the weapons recovered pursuant to the disclosure statements of the accused. The eyewitness account on record through the depositions of PW 2 Surinder Kaur and PW 3 Gurpreet Kaur is cogent, consistent and trustworthy. Though DW1 Varinder Sharma stated that Appellant No.2 was attached to him as a gunman, nothing was placed on record whether at the relevant time Appellant No.2 was on duty. Furthermore neither the doctor who had put the stitches on the palm of Appellant No.1 was examined, nor was there any other medical evidence on record suggesting that it was impossible for Appellant No.2 to even hold the dagger as alleged. In any case out of three blows suffered by the deceased Kulbir Singh only one was attributed to Appellant No.1 while the other two were dealt by Appellant No.2. The non-examination of Gurdial Singh and Devinder Singh also does not fatally affect the case of the prosecution, as they were not eye-witnesses but had merely helped Surinder Kaur in taking her husband to the hospitals. 12. We do not find any infirmity in the view taken by the High Court. We, therefore, affirm the judgment of conviction and sentence as recorded against the appellants and dismiss the present appeal. The appellants shall serve out the sentence as awarded to them.

                                                              Non-reportable
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1178 of 2008

Gurmit Singh and another                             …. Appellants

                                   Versus

State of Punjab                                            … Respondent

                               J U D G M E N T

Uday Umesh Lalit, J.


This appeal by special leave arises out of the  judgment   and  order  dated
08.01.2007 passed by the High  Court  of  Punjab  and  Haryana  in  Criminal
Appeal No.503-DB of 1997  affirming  the  conviction  and  sentence  of  the
appellants under Section 302 read with Section 34 of IPC.

Appellant No.1 Gurmit Singh was married to Charanjit Kaur.  However  because
of some differences, she was staying with her father Kulbir Singh,  who  was
running a shop for sale of marble and chips at  village  Loharan  in  Distt.
Jalandhar.  On 06.02.1996 at about 4.00 pm, Appellant  No.1  accompanied  by
his brother Harjinder  Singh,  i.e.  Appellant  No.2  allegedly  came  on  a
scooter to the shop of Kulbir Singh and asked him to permit  Charanjit  Kaur
to stay with Appellant No.1. According  to  the  prosecution,  Kulbir  Singh
asked both the appellants to sit with  him  so  that  the  matter  could  be
settled.  However Appellant No.1 took out a dagger and inflicted a  blow  on
the left side of Kulbir Singh, followed by Appellant No.2  inflicting  knife
blows on the right side and the neck of Kulbir Singh.   Surinder  Kaur  wife
of Kulbir Singh raised hue  and  cry  but  both  the  appellants  fled  away
towards Nakodar.  The incident was witnessed by Surinder Kaur and her  other
daughter Gurpreet Kaur.  With the help of Gurdial Singh and Devinder  Singh,
Surinder Kaur managed  to  shift  Kulbir  Singh  to  Satnam  Singh  Memorial
Charitable Hospital at Malko Tarar, where he was given first  aid  and  then
referred to Military Hospital, Jalandhar.

3.     S.I.  Joginder  Singh,  went  to  Satnam  Singh  Memorial  Charitable
Hospital upon coming to know about Kulbir Singh  having  sustained  injuries
but by that time he  was  referred  to  Military  Hospital,  Jalandhar.   He
therefore  reached  Military  Hospital  and  found  Surinder  Kaur  weeping.
Kulbir Singh succumbed to his injuries at  9.22  pm  and  the  statement  of
Surinder Kaur was recorded at 10.50 pm, pursuant to which vide DDR  No.25/26
at 11.40 pm  crime  was  registered  with  Police  Station,  Lambra,  Distt.
Jalandhar against the appellants under  Sections  302/34  IPC.   As  regards
actual incident, her reporting was as  under:
“……. My husband asked Gurmit Singh to sit there  and  to  have  a  talk  (to
settle the matter) but my son-in-law at once whipped out a dagger  from  the
dub (fold) of his pant worn by him and gave blow with the same on  the  left
flank of my husband.  His brother Harjinder  Singh  gave  a  blow  with  the
knife held by him to my husband which hit him on his right flank,  Harjinder
Singh gave the third blow with the knife held by him  to  my  husband  which
hit on the left side of  his  neck.   I  raised  an  alarm  of  “Mar  Ditta,
Marditta.” (Killed, Killed) in order to save my husband.  In  the  meantime,
my younger daughter Gurpreet Kaur also came to the shop.  Both Gurmit  Singh
and Harjinder Singh left the spot on their scooter  towards  Nakodar  taking
their sharp-edged weapons along with them.   The  whole  incident  was  also
witnessed by my daughter Gurpreet Kuar.”

4.    After sending ruqa to the police station, Sub-Inspector  Joginder  Pal
prepared  the  inquest  report  on  the  dead  body  of  the  deceased.   On
07.02.1996, he prepared rough site plan and also lifted earth  smeared  with
blood  from  the  spot.   The  post  mortem  examination  was  conducted  on
07.02.1996 at 12.40 pm by Dr. Pushpinder Kaur who found  following  injuries
on the body of Kulbir Singh:
“1.   A stab wound 2 cms x ½ cm, 9  cms  above  and  lateral  to  the  inner
border of the left clavicle.  The probe went upto 7 cm.

2     A stab wound 2.5 cm x 1 cm; 23 cms lateral to  the  umbilicus  on  the
right side.  Blood was oozing out.

3.    A stab wound 2.5 cms x 1 cm on the left side 20 cms below and  lateral
to the left nipple and 29 cms from  mid-line.   Blood  was  oozing  out  the
wound.”

      The chest cavity was found full of blood.  Left lung and  pleura  were
injured.  The abdominal cavity was  full  of  blood.   The  peritornium  and
right side of liver were  injured.    The  cause  of  death  was  shock  and
hemorrhage due to injuries which were  sufficient  to  cause  death  in  the
ordinary course of nature.  All the injuries were ante-mortem in nature.

5.    Sub-Inspector Joginder Pal arrested both  the  accused  on  08.02.1996
and  got  recovered  blood-stained  dagger  and  knife  on  10.02.1996,   in
pursuance of their statements Exhibit PQ and PR  under  Section  27  of  the
Evidence Act and took the same into possession vide memo  Exhibit  PQ/2  and
Exhibit PR/2.    After  obtaining  necessary  sanction  for  prosecution  of
accused Harjinder  Singh,  a  Constable  in  the  Punjab  Police  and  after
completion of the investigation, a charge sheet was submitted against them.

6.    During the  trial,  the  prosecution  examined  nine  witnesses.   Dr.
Pushpinder Kaur was examined as PW1, while eye-witness account was  unfolded
through Surinder Kaur and Gurpreet  Kaur,  examined  as  PW  Nos.  2  and  3
respectively.  Constable Sukhdev Singh (PW4)  and  Avtar  Singh  (PW8)  were
formal  witnesses  who  deposed  by  way  of  affidavits  Ext.   PG  and  PT
respectively.  Capt. Miss Minu Sabharwal (PW5) proved the  death  report  of
deceased Kulbir Singh.  Sub-Inspector Joginder Pal (PW6) and Assistant  Sub-
Inspector Hans Raj (PW7) were  the  investigating  officers.   Milkha  Singh
Pardesi (PW9) identified the signature of M.S. Chahal,  the  then  Principal
Secretary, Home Affairs and Justice, Punjab on the  sanction  letter.  After
tendering in evidence the affidavits of head constables Gian Singh Ext.  PH,
constable Nasib Chand Ext.  PJ  and  the  report  of  the  Forensic  Science
Laboratory Ext. PX, the prosecution closed its case.

7.     The  defence  of  both  the  appellants  was  of  false  implication.
Appellant Gurmit Singh in his statement under Section 313  of  the  Code  of
Criminal Procedure stated that the family of the complainant wanted  him  to
stay as Ghar Jamaai which he had refused and the same led to a grudge  being
nursed against him.  Appellant Harjinder Singh submitted that he was  posted
as a gunman with one Varinder Sharma, Councillor and that he was on duty  at
the relevant time.  In support of their  defence,  the  appellants  examined
Varinder  Sharma,  Councillor,  Municipal  Corporation,   Jalandhar   (DW1),
Constable Atma Singh (DW2), MHC Kailash Chander (DW3), Dr. Gur  Iqbal  Singh
(DW4) and Additional MHC Sukhdev Singh  (DW5).   By  examining  DW4  it  was
sought to be established that the left arm of Appellant No.1 was in  plaster
while his right palm was having stitches; the injuries being  at  least  ten
days old on the date of the incident.

8.    After considering the material on  record,  the  trial  court  by  its
judgment  and order dated 28.05.1997 found that the case of the  prosecution
was fully established.  Relying on the  eye-witness  account,  as  supported
and corroborated  by  the  medical  evidence  on  record,  as  well  as  the
recoveries of the weapons in question, the trial court found the  appellants
guilty under Section 302 read with Section 34  IPC  and  sentenced  them  to
undergo rigorous imprisonment for life and to pay fine  of  Rs.1000/-  each,
in default whereof  to  undergo  further  rigorous  imprisonment  for  three
months.  Both the appellants carried the matter further by  filing  Criminal
Appeal No.503-DB of 1997 in the High Court.   The High Court  did  not  find
any merit and dismissed the appeal.   The  High  Court  also  dismissed  the
Criminal Revision No.862 of 1997 which was preferred by  Surinder  Kaur  for
enhancement of sentence.

9.    In this appeal by special leave challenging  the  correctness  of  the
decision of the High  Court,  Mr.  K.T.S.  Tulsi,  learned  Senior  Advocate
appearing for the appellants submitted inter alia:
(i) The incident in question allegedly happened around 4.00 pm but  the  FIR
was registered at 11.40 pm and  reached  the  Magistrate  next  day  in  the
morning at 6.00 am.  The delay on both counts was completely unexplained.
(ii)  The Hospital record of Military  Hospital,  Jalandhar  disclosed  that
Kulbir Singh was not  admitted  by  Surinder  Kaur.   This  established  the
absence of Surinder Kaur at the time the incident had happened.
(iii)  The presence of both the eye-witnesses was extremely doubtful.
(iv)  Apart from these two eye-witnesses, nobody else  was  examined  though
Gurdial Singh and Devinder Singh had allegedly removed Kulbir Singh  to  the
hospital.
(v)  The left arm of Appellant No.1 was in plaster while the other palm  was
having stitches as found by the jail doctor, soon after their  arrest.  Both
these injuries being at least 8 to 10 days  old,  it  was  impossible   that
Appellant No.1 could have dealt the blow as alleged.
(vi)  The other appellant was on duty as stated by DW1 Varinder Sharma.

10.   Mr. Jayant K. Sud, learned Additional Advocate General  appearing  for
the State submitted that the reporting by Surinder Kaur  was  quite  prompt.
In  his  submission,  the  physical  condition  of  Kulbir  Singh   required
immediate medical attention and as such Surinder Kaur could not be  expected
to leave her husband and go  to  police  station  to  lodge  a  report.   He
further submitted that the eye-witness account was  completely  corroborated
by the medical evidence on record as  well  as  recoveries  of  the  weapons
pursuant to disclosure statements made by both the accused.

11.   We have gone through the record and considered the rival  submissions.
 The distance between the place where Kulbir Singh  was  assaulted  and  the
first hospital where he was taken, was about 11  KM.   There  he  was  given
medical  attention  and  then  referred  to  Military  Hospital,  Jalandhar.
Considering these facts, the lodging of the FIR in the present  case  cannot
be called to have been delayed unnecessarily.  In our  view,  the  reporting
was without any delay or deliberation and  sets  out  true  account  of  the
incident.   The  assertions  in  the  reporting  are  well   supported   and
corroborated by the post-mortem conducted the next  day.   The  injuries  so
found in the post-mortem are possible by the weapons recovered  pursuant  to
the disclosure statements of the accused.  The eyewitness account on  record
through the depositions of PW 2 Surinder Kaur and  PW  3  Gurpreet  Kaur  is
cogent, consistent and trustworthy. Though DW1 Varinder Sharma  stated  that
Appellant No.2 was attached to him  as  a  gunman,  nothing  was  placed  on
record  whether  at  the  relevant  time  Appellant  No.2   was   on   duty.
Furthermore neither the doctor who had put  the  stitches  on  the  palm  of
Appellant No.1 was examined, nor was there any  other  medical  evidence  on
record suggesting that it was impossible for Appellant  No.2  to  even  hold
the dagger as alleged.  In any case out  of  three  blows  suffered  by  the
deceased Kulbir Singh only one was attributed to Appellant  No.1  while  the
other two were dealt by Appellant  No.2.   The  non-examination  of  Gurdial
Singh and Devinder Singh also does  not  fatally  affect  the  case  of  the
prosecution, as they were not eye-witnesses but had merely  helped  Surinder
Kaur in taking her husband to the hospitals.

12.   We do not find any infirmity in the view  taken  by  the  High  Court.
We, therefore, affirm the judgment of conviction and  sentence  as  recorded
against the appellants and  dismiss  the  present  appeal.   The  appellants
shall serve out the sentence as awarded to them.


            ……..…..…………………………….J.
                              (Fakkir Mohamed Ibrahim Kalifulla)



                              ……..…..…………………………….J.
                               (Uday Umesh Lalit)

 New Delhi,
 September 30, 2015

At the outset we are obliged to clarify that it is not an appeal seeking cancellation of bail in the strictest sense. It actually calls in question the legal pregnability of the order passed by the High Court. The prayer for cancellation of bail is not sought on the foundation of any kind of supervening circumstances or breach of any condition imposed by the High Court. The basic assail is to the manner in which the High Court has exercised its jurisdiction under Section 439 CrPC while admitting the accused to bail. To clarify, if it has failed to take into consideration the relevant material factors, it would make the order absolutely perverse and totally indefensible. That is why there is a difference between cancellation of an order of bail and legal sustainability of an order granting bail. [See State of U.P. v. marmani Tripathi[1], Puran v. Rambilas[2], Narendra K. Amin v. State of Gujarat[3], and Prakash Kadam v. Ramprasad Vishwanah Gupta[4].] Before parting with the case, we may repeat with profit that it is not an appeal for cancellation of bail as the cancellation is not sought because of supervening circumstances. The annulment of the order passed by the High Court is sought as many relevant factors have not been taken into consideration which includes the criminal antecedents of the accused and that makes the order a deviant one. Therefore, the inevitable result is the lancination of the impugned order Resultantly, the appeal is allowed and the order passed by the High Court is set aside. If the respondent no.2 is at large, he shall be taken into custody forthwith; and if he is still in custody because of certain other cases, he shall not be admitted to bail in connection with the present case. We make it clear that we have not expressed any opinion with regard to other cases and simultaneously we also clearly state that our observations in this case are only meant for purpose of setting aside the order granting bail and would have no impact or effect during the trial.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1272 OF 2015
                        (@ SLP(Crl) No. 1596 OF 2015)


Neeru Yadav                                  ...  Appellant

                                Versus

State of U.P. and Anr.                 ...   Respondents



                               J U D G M E N T



Dipak Misra, J.


      The present appeal, by special leave, on a summary glance  may  appear
that a victim who might have an  axe  to  grind  against  the  accused,  the
respondent no.2 herein, and further to wreck his  vengeance  has  approached
this Court seeking cancellation of his bail, possibly  being  emboldened  by
the inaction of the State authorities who have  chosen  to  maintain  sphinx
like silence or decided to  assume  the  stagnated  posture  of  a  splendid
sculpture of Rome, and invigorated by the thought  that  he  can  singularly
carry the crusade, without any support, for he has a cause to  vindicate  by
valiantly exposing the legal infirmities in the order  passed  by  the  High
Court  admitting  the  2nd  respondent  to  bail  and  also  unconceal   the
lackadaisical attitude of the State, but on a keener  scrutiny  the  initial
impression melts  away  and  the  perversity  of  the  order  impugned  gets
unrolled.  Be it stated, at a  narrow  level  it  may  look  like  a  combat
between two individuals, but when analytical scrutiny is done and the  State
is compelled to wake up from its slumber, the unveiling of facts reveal  the
contestation between the accord and the discord,  the  scuffle  betwixt  the
sacrosanctity and  the  majesty  of  law  on  one  hand  and  the  maladroit
ingenious efforts to get the benefit by the abuse of process  of  the  Court
on the other.  The analysis  has  to  be  made,  that  being  an  imperative
command, between the honest nidification and the surreptitious edifice.

2.    Mr. Pradeep Kumar Yadav, learned counsel for the appellant,  with  all
the distress and the intellectual agony  at his command, has submitted  that
the High Court without appropriate analysis and  even  without  being  fully
apprised of the fact situation, solely on the basis of parity, as if  it  is
the only foundation or for that matter, the  comet  that  has  come  off  to
shine, has enlarged the respondent no.2  on  bail  totally  being  oblivious
that no accused, however influential he may be or clever he  thinks  to  be,
cannot be allowed to  nullify the sanctity and purity of  law  and  jettison
the age old values “truth in action” and “the firm and continuous desire  to
render to every one which is due”, the two fundamental pillars  of  justice.
 The plea, submits Mr. Yadav, apart from cleverness also  shows  an  attempt
of the nonchalant  mind  of  the  respondent  No  2  to  engage  in  fertile
imagination possibly  thinking  that  the  ground  of  parity  is  the  real
structure of palladium to bring the nemesis of the prosecution and  put  the
Court in a situation to choose between Scylla and Charybdis.  And,  at  this
juncture, we must state that both the appellant and the State (though  at  a
later stage) have become Argus-eyed and destroyed the  ingenious  foundation
so astutely built by the accused.

3.    Keeping in  view  the  aforesaid  submissions,  we  shall  proceed  to
adumbrate the requisite factual score.  One Salek Chand  s/o.  Satpal  Singh
lodged an FIR at P.S. Kavinagar, Ghaziabad on 25.02.2013  about  11.45  a.m.
against certain persons  relating  to  the  murder  of  his  elder  brother,
Yashvir Yadav.  On the basis of the lodging of the  FIR,  the  criminal  law
was set in motion and eventually chargesheet  was  filed  which  formed  the
subject matter of Case Crime No. 237 of 2013  for  the  offences  punishable
under Sections 147, 148, 149, 302, 307, 394, 411, 454, 506, 120B  read  with
Section 34 IPC.  After the application for bail was rejected by the  learned
trial Judge, the accused person, respondent no.2, moved the  High  Court  in
Criminal Misc. Bail Application No. 25466 of 2014.  It was contended  before
the High Court that an omnibus role had been ascribed to him and  the  other
accused persons that they had indulged in general firing  as  a  consequence
of which one person had died, for he had received three gun  shot  injuries.
It was also contended that  there  was  no  credible  evidence  against  the
accused persons.  The real plank of submission before the High Court, as  is
perceptible, was that prayer for bail  in  respect  of  11  accused  persons
including  Mitthan  Yadav  had  already  been  allowed,  and  there  was  no
justification to deny him the said benefit as he was similarly placed.

4.    The prayer for bail was resisted by the Public Prosecutor  contending,
inter alia, that there was  indiscriminate  firing  by  the  accused  person
causing fatal injuries.  The High Court, after  hearing  both  the  parties,
has passed following order:-

“In view of above facts, considering the nature of allegation,  severity  of
punishment and period  of  detention,  without  expressing  any  opinion  on
merit, it is a fit case for bail.

Let the applicant Budhpal @ Buddhu be enlarged on bail on his  furnishing  a
personal bond with two heavy  sureties  each  in  the  like  amount  to  the
satisfaction of court concerned in case crime no. 237 of 2013 under  Section
147,148,149,302,307,394,411,454,506, 120B, 34  I.P.C.  Police  Station  Kavi
Nagar, District Ghaziabad with the following conditions:

(i)   The applicant will not tamper with the evidence during the trial.

(ii)  The applicant will not pressurize/intimidate the prosecution witness.

(iii)  The applicant will appear before the trial court on the  date  fixed,
unless personal presence is exempted.

In case of breach of any of the above conditions, the court below  shall  be
at liberty to cancel the bail.”



      The said order is the subject matter of assail in the  present  appeal
by special leave.

5.    At the outset we are obliged to clarify  that  it  is  not  an  appeal
seeking cancellation of bail in the strictest sense.  It actually  calls  in
question the legal pregnability of the order passed by the High Court.   The
prayer for cancellation of bail is not sought on the foundation of any  kind
of supervening circumstances or breach of any condition imposed by the  High
Court.  The basic assail is to the  manner  in  which  the  High  Court  has
exercised its jurisdiction  under  Section  439  CrPC  while  admitting  the
accused to bail.  To clarify, if it has failed to  take  into  consideration
the relevant material factors, it would make the order  absolutely  perverse
and totally indefensible.   That  is  why  there  is  a  difference  between
cancellation of an order of  bail  and  legal  sustainability  of  an  order
granting bail.   [See  State  of  U.P.  v.  marmani  Tripathi[1],  Puran  v.
Rambilas[2], Narendra K. Amin v. State of Gujarat[3], and Prakash  Kadam  v.
Ramprasad Vishwanah Gupta[4].]

6.    Having cleared that maze, we may clarify, though  seriously  urged  by
Mr. P. George Giri that there is no warrant  for  cancellation  of  bail  as
there has been no  supervening  circumstances,  yet  the  said  enthusiastic
submission leaves us unimpressed, as that is not  the  real  thrust  of  the
matter.

7.    The mystery does not end there.  Mr. P. George Giri,  learned  counsel
for the respondent on 14.9.2015,  in  course  of  hearing,  on  instructions
advanced an eminently innocuous, but innovative plea with  the  potentiality
to create immense confusion that  the  description  of  respondent  no.2  is
absolutely erroneous, and, in fact, he is not the accused in any case.   Mr.
Pradeep Kumar Yadav very fairly stated that there has been  a  typographical
error in describing the name of the respondent no.2,  for  his  name  should
have been Budhpal @ Buddhu s/o. Sh. Ram and not  Santpal  Yadav.   Mr.  R.K.
Dash, learned senior counsel appearing for the State apprised  us  that  the
address is correct as stated in the FIR and the chargesheet and the same  is
also reflected in the application for grant of bail.   Taking  note  of  the
said situation, we permitted the cause title to be corrected.  However,  the
issue having been raised regarding the identity of the respondent  no.2,  to
clear our conscience, we asked the State to show us the  documents  that  he
is the person who  is  accused  of  the  offence.   On  the  next  occasion,
documents were shown and we were satisfied, and  we  allowed  the  ambitious
submission to burn into ashes, or to put it differently,  evaporate  in  the
thin air.

8.     It is interesting to note that learned counsel for the appellant  and
the learned counsel for the State submitted  that  the  respondent  no.2  is
still in jail despite the order of bail as he is involved in so many  cases.
 We will take up the said issue at a later stage.  It is  submitted  by  Mr.
Yadav, learned  counsel  for  the  appellant  that  despite  the  factum  of
criminal history pointed out before the  High  Court,  it  has  given  it  a
glorious ignore which the law does not countenance.  The  solitary  and  the
singular grievance which is propounded with solidity  that  the  High  Court
should have dwelt upon the same and  thereafter  decided  the  matter.   Mr.
Dash,  learned  senior  counsel  (though  the  State  has  not   moved   any
application for setting aside the order of bail granted by  the  High  Court
for the reasons which are unfathomable)  unhesitatingly  accepted  the  said
submission.  In the additional affidavit,  an  independent  chart  has  been
filed by the State and we find that apart from the present case,  there  are
seven cases pending against the respondent no.2.   The  chart  of  the  said
cases is reproduced below:-

“1.   FIR No. 664/02 u/s 302 IPC, PS Kavinagar, Ghaziabad.

2.    FIR No. 558/04 u/s. 392, 411 IPC, PS Kotwali, Dist. Bulandshahar.

3.    FIR No. 14/05 u/s. 398, 401, 307 IPC PS Noida, Gautam Budh Nagar.

4.    FIR No. 15/05 u/s. 25, 27 Arms Act, PS Sector 49, Noida,  Gautam  Budh
Nagar

5.    FIR No. 1614/08 u/s. 364, 302, 201 IPC, PS Sihani Gate, Ghaziabad

6.    FIR No. 98/05 u/s. 2/3  Gangster Act,  PS  Sector  49,  Noida,  Gautam
Budh Nagar

7.    FIR No. 451/12 u/s. 60 PS Sector 49 Noida, Gautam Budh Nagar”



9.    On a perusal of the  aforesaid  list,  it  is  quite  vivid  that  the
respondent no.2 is a history-sheeter and is involved  in  heinous  offences.
Having stated the facts and noting the nature of involvement of the  accused
in the crimes in question, there can be no scintilla of doubt to name him  a
“history-sheeter”.   The  question,  therefore,  arises  whether  in   these
circumstances, should the High Court  have  enlarged  him  on  bail  on  the
foundation of parity.

10.   In Ram Govind Upadhyay v. Sudarshan  Singh[5],  it  has  been  clearly
laid down that the grant of bail though involves exercise  of  discretionary
power of the Court, such  exercise  of  discretion  has  to  be  made  in  a
judicious manner and not as a matter of course.     The  heinous  nature  of
crimes warrants more caution as there is a greater chance  of  rejection  of
bail though, however, dependent on the factual matrix of  the  matter.    In
the said case,  reference  was  made  to  Prahlad  Singh  Bhati  v.  NCT  of
Delhi[6],  and  thereafter  the  court  proceeded  to  state  the  following
principles:-

“(a) While granting bail the court has to keep in mind not only  the  nature
of the accusations, but the severity of the punishment,  if  the  accusation
entails  a  conviction  and  the  nature  of  evidence  in  support  of  the
accusations.

(b) Reasonable apprehensions of the witnesses being  tampered  with  or  the
apprehension of there being a threat for the complainant should  also  weigh
with the court in the matter of grant of bail.

(c) While it is not expected to have the entire  evidence  establishing  the
guilt of the accused beyond reasonable doubt but there ought always to be  a
prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only  the
element of genuineness that shall have to be considered  in  the  matter  of
grant of bail, and in the  event  of  there  being  some  doubt  as  to  the
genuineness of the prosecution, in the normal course of events, the  accused
is entitled to an order of bail.”



11.   It is a well settled principle of  law  that  while  dealing  with  an
application for grant of bail, it is the duty of  the  Court  to  take  into
consideration certain factors and they basically are, (i)    the  nature  of
accusation and the severity of punishment in cases  of  conviction  and  the
nature of supporting evidence, (ii)    reasonable apprehension of  tampering
with the witnesses for apprehension of threat to the complainant, and  (iii)
Prima facie satisfaction of the court in support of the charge. [See  Chaman
Lal v. State of U.P.[7])

12.   In Prasanta Kumar Sarkar v. Ashis Chatterjee[8],  while  dealing  with
the court’s role to interfere with the power of  the  High  Court  to  grant
bail to the accused, the Court observed that it is to be seen that the  High
Court has exercised this discretion judiciously, cautiously and strictly  in
compliance with the basic principles laid down in  catena  of  judgments  on
that point.  The Court proceeded to enumerate the factors:-

“9. … among other circumstances, the factors [which  are]  to  be  borne  in
mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground  to  believe  that
the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.”



13.   We will be failing in our duty if we do not take note of  the  concept
of liberty and its curtailment by law.  It is an  established  fact  that  a
crime though committed against an individual,  in  all  cases  it  does  not
retain an individual character.  It, on occasions and in  certain  offences,
accentuates  and  causes  harm  to  the  society.  The  victim  may  be   an
individual, but in the ultimate eventuate, it is the society  which  is  the
victim.  A crime, as is understood, creates a dent  in  the  law  and  order
situation.  In a  civilised  society,  a  crime  disturbs  orderliness.   It
affects the peaceful life of the  society.   An  individual  can  enjoy  his
liberty which is definitely of paramount value but he cannot be a  law  unto
himself.  He cannot cause harm to others.  He cannot be a  nuisance  to  the
collective.  He cannot be a terror to the society; and that  is  why  Edmund
Burke, the great English thinker, almost two centuries  and  a  decade  back
eloquently spoke thus:-

“Men  are  qualified  for  civil  liberty,  in  exact  proportion  to  their
disposition to put moral chains upon their own appetites; in  proportion  as
their love to justice is  above  their  rapacity;  in  proportion  as  their
soundness  and  sobriety  of  understanding  is  above  their   vanity   and
presumption; in proportion as they  are  more  disposed  to  listen  to  the
counsel of the wise and good, in  preference  to  the  flattery  of  knaves.
Society cannot exist unless a controlling power upon will  and  appetite  be
placed somewhere and the less of it there is within, the more there must  be
without. It is ordained in the eternal constitution of things  that  men  of
intemperate minds cannot be free. Their passions forge their fetters[9].



14.   E. Barrett Prettyman, a retired Chief Judge of  US  Court  of  Appeals
had to state thus:-

 “In an ordered society of mankind there is no such  thing  as  unrestricted
liberty, either of nations or of individuals. Liberty itself is the  product
of restraints; it is inherently a composite  of  restraints;  it  dies  when
restraints are withdrawn. Freedom, I say, is not an absence  of  restraints;
it is a composite of restraints. There is no liberty  without  order.  There
is no order without systematised restraint.  Restraints  are  the  substance
without which liberty does not exist. They are the essence of  liberty.  The
great problem of the democratic process is not to strip  men  of  restraints
merely because they are restraints. The great problem is to design a  system
of  restraints  which  will  nurture  the  maximum  development   of   man’s
capabilities, not in a  massive  globe  of  faceless  animations  but  as  a
perfect realisation, of each separate human mind,  soul  and  body;  not  in
mute, motionless meditation but in flashing, thrashing activity.[10]”



15.   This being the position of law, it is clear as cloudless sky that  the
High Court has totally ignored the  criminal  antecedents  of  the  accused.
What has weighed with the High Court is the doctrine of parity.  A  history-
sheeter  involved  in  the  nature  of  crimes  which  we  have   reproduced
hereinabove, are not minor offences so that he is  not  to  be  retained  in
custody, but the crimes are  of  heinous  nature  and  such  crimes,  by  no
stretch of imagination, can be regarded as jejune.  Such cases do  create  a
thunder and lightening having the effect potentiality of torrential rain  in
an analytical mind.  The  law  expects  the  judiciary  to  be  alert  while
admitting these kind of accused persons to be at large and,  therefore,  the
emphasis is on exercise of discretion judiciously and  not  in  a  whimsical
manner.

16.   In this regard, we may profitably reproduce a  few  significant  lines
from Benjamin Disraeli:-

“I repeat……… that all power is a  trust-that  we  are  accountable  for  its
exercise- that, from the people and for the people,  all  springs,  and  all
must exist.”



17.   That apart, it has to be remembered that  justice  in  its  conceptual
eventuality and connotative expanse engulfs the magnanimity of the sun,  the
sternness of mountain,  the  complexity  of  creation,  the  simplicity  and
humility of a saint and the austerity of a Spartan, but  it  always  remains
wedded to rule of law  absolutely  unshaken,  unterrified,  unperturbed  and
loyal.

18.   Before parting with the case, we may repeat with  profit  that  it  is
not an appeal for cancellation of bail as the  cancellation  is  not  sought
because of supervening circumstances.  The annulment of the order passed  by
the High Court is sought as many relevant factors have not been  taken  into
consideration which includes the criminal antecedents  of  the  accused  and
that makes the order a deviant one.  Therefore,  the  inevitable  result  is
the lancination of the impugned order

19.   Resultantly, the appeal is allowed and the order passed  by  the  High
Court is set aside.  If the respondent no.2 is at large, he shall  be  taken
into custody forthwith; and if he is still in  custody  because  of  certain
other cases, he shall not  be  admitted  to  bail  in  connection  with  the
present case.  We make it clear that we have not expressed any opinion  with
regard to other cases and simultaneously we  also  clearly  state  that  our
observations in this case are only meant for purpose of  setting  aside  the
order granting bail and would have no impact or effect during the trial.



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



                                             ..........................., J.
                                                          [Prafulla C. Pant]
New Delhi
September 29, 2015
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[1]     (2005) 8 SCC 21
[2]     (2001) 6 SCC 338
[3]     (2008) 13 SCC 584
[4]     (2011) 6 SCC 189
[5]     (2002) 3 SCC 598
[6]     (2001) 4 SCC 280
[7]     (2004) 7 SCC 525
[8]     (2010) 14 SCC 496
[9]     Alfred Howard, The Beauties of Burke (T. Davison, London) 109
[10]    Speech at Law Day Observances (Pentagon, 1962) as quoted in Case
and Comment, Mar-Apr 1963