It is a settled law that when prosecution relies on circumstantial evidence, the following tests to be clearly established: (i) The circumstances from which an inference of guilt is sought to be drawn, must be cogent and firm; (ii) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (iv) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. The prosecution, however, in the present case, has failed at the foremost to link the accused with the incident. The prosecution has the responsibility to present a chain of events. The accused's culpability could have been established if the blood samples were tested and matched, the recovery of underwear is not proven to be that of the deceased. Otherwise, the recovery was unnatural and did not adduce confidence. One prosecution witness who is an independent witness has stated that the accused had gone to another village on the date of incident. There were material discrepancies in the statements of the prosecution witnesses. The testimonies of the interested witnesses, namely, PW3, PW4, PW5 and PW28 clearly show that they materially improvised from their earlier depositions. The accused also examined two defence witnesses who stated that the accused was attending function in some other village on the fateful night. The High Court went into each and every material aspect of the case, examined at length the deposition of the witnesses and rightly held that the links which are collected by the prosecution have not at all been proved by any cogent evidence and, therefore, it is difficult to hold that it was the accused who committed rape upon the deceased and thereafter killed her. 16. Thus, in the light of the above discussion, we do not find any ground to interfere with the judgment passed by the High Court. The appeals are, accordingly, dismissed.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                   CRIMINAL APPEAL NOS. 1793-1794  OF 2011
      RAM SUNDER SEN                                    APPELLANT
                                   VERSUS


      NARENDER @ BODE SINGH PATEL                  RESPONDENT


                                    WITH


                   CRIMINAL APPEAL NOS. 1795-1796  OF 2011


      STATE OF MADHYA PRADESH                      APPELLANT


                                   VERSUS


      NARENDER @ BODE SINGH PATEL                  RESPONDENT








                               J U D G M E N T
      Pinaki Chandra Ghose, J.
   1. These appeals, by special leave, are directed against the judgment and
      order dated 23.07.2008,  passed by the High Court of Madhya Pradesh at
      Jabalpur  in  Criminal  Appeal  No.11  of  2008  along  with  Criminal
      Reference No.4 of 2007, whereby the High Court  allowed  the  criminal
      appeal filed by the respondent herein and acquitted him  and  disposed
      of the Criminal Reference No.4 of 2007 filed by the  State  of  Madhya
      Pradesh.

   2. The case of the prosecution, stated briefly, is that on 19.05.2004  at
      8.30 A.M., the complainant Ram Sunder Sen lodged a  report  at  Police
      Chowki Kotar stating that  there  was  a  function  in  his  house  on
      18.05.2004 in which his relatives and family members had gathered. His
      daughter Anita, aged about 12 years, after eating meal,  had  gone  to
      sleep at 7.00 P.M. in front of the main gate of his house as there was
      no electricity in the house then. After  the  function  was  over,  at
      about 11.00 P.M., he and his family members  also  slept  there.  Next
      morning  i.e. on  19.05.2004  at  6.00  A.M.,  the  wife  of  Sarpanch
      Vansbahadur informed that the dead body of Anita  was  lying  in  Bari
      near the house of the Sarpanch. She  was  not  wearing  underwear  and
      skirt. There were abrasions on her forehead, nose and face.  Abrasions
      were also found on the neck as well as nearby navel region.  Blood was
      oozing out of private part, cut on the face and  ankles  of  both  the
      legs. FIR against an unknown person was lodged, the dead body was sent
      for post-mortem and investigation was thrown open.  The  Investigating
      Officer recorded the statements of the witnesses. On the basis of  the
      statement of the witnesses, accused Narendra @ Bode  Singh  Patel  was
      arrested who admitted his guilt and  at  his  instance,  blood-stained
      underwears of the deceased as also the accused were recovered  from  a
      pitcher kept behind his house.

   3. After investigation was complete,  Police  filed  challan  before  the
      Court against accused Narendra and  the  case  was  committed  to  the
      Sessions Court for trial. After considering the material on record and
      hearing the counsel for  the  accused,  charges  were  framed  against
      accused Narendra for offence punishable under Sections 302,  376(2)(f)
      and 201 of the Indian Penal Code, 1873 (“IPC” for short). The  charges
      were read over and explained to the accused to which  he  pleaded  not
      guilty and claimed for trial.


   4. The Trial Court by its judgment and order dated 18.12.2007,  convicted
      the respondent accused and  awarded  capital  punishment  to  him  for
      offence punishable under Section 302  IPC.  The  Trial  Court  further
      sentenced him to rigorous imprisonment for life for offence punishable
      under Section 376(2)(f), and rigorous imprisonment for seven years and
      a fine of Rs100, with default clause, for the offence punishable under
      Section 201 IPC. Thereafter, the matter was referred to the High Court
      of Madhya Pradesh for confirmation of  death  sentence  vide  Criminal
      Reference No.4 of 2007. The accused also filed an  appeal  before  the
      High Court, being Criminal Appeal No.11 of 2008. The High Court by the
      impugned judgment allowed the appeal  filed  by  the  accused  on  the
      ground that the prosecution failed to prove the chain of circumstances
      sufficient enough to connect the accused with the alleged offence and,
      consequently, the respondent accused was set at liberty.


   5. Aggrieved by the judgment of acquittal passed by  the  High  Court  of
      Madhya Pradesh, the complainant, who is the father  of  the  deceased,
      has approached this Court by filing Criminal Appeal  Nos.1793-1794  of
      2011. The State of Madhya Pradesh has also challenged  before  us  the
      judgment of acquittal passed by the High Court  vide  Criminal  Appeal
      Nos.1795-1796 of 2011. Learned counsel for  the  complainant-appellant
      has inter alia submitted that the judgment of the Trial Court is  well
      reasoned and well considered. Both the counsel  for  the  complainant-
      appellant and counsel for the State have assailed the reasoning  given
      by the High Court in arriving at a wrong conclusion i.e. the innocence
      of the accused.


   6. The Trial Court convicted the accused respondent on the basis  of  the
      prosecution story relying upon the circumstantial evidence. The law is
      well settled in deciding a case based upon  circumstantial  evidences.
      The prosecution tried to establish  the  following  facts  before  the
      Trial Court :


           (i)   Motive : in order to satisfy the lust,
           (ii)  The recovery of underwear of  the  deceased  as  also  the
           underwear of the accused was made at the instance of the accused
           in his own house,
           (iii)  Human blood was found on the underwear of the accused,
           (iv) The accused came to the house of the deceased at 11.00pm on
           18.05.2004 under the pretext of a Bidi but was  turned  back  by
           the mother of the deceased.
           (v)   Previous acts of the accused to make the deceased  sit  in
           his lap and to  kiss  her  for  which  he  was  rebuked  by  the
           deceased's father reveals his ill-intentions.
           (vi) Accused made an attempt to rape the daughter of  one  Kallu
           Prajapati of Village Golhata prior to the incident,
           (vii)  In the morning of 19.05.2004 the accused was not found in
           the village,
           (viii) Accused was seen around the place of  incident  at  night
           within close proximate time when the incident occurred,
           (ix)  Accused failed to give reasonable  explanation  about  the
           injuries suffered by him.



      The Trial Court held that the above facts proved the prosecution  case
      beyond reasonable doubt and hence the accused was  convicted  for  the
      offence charged. However, the High Court pointed out  serious  lacunae
      in the above-mentioned evidences and hence the  conviction  order  was
      set aside by the High Court giving benefit of doubt to the accused.


   7. We shall now examine  each  and  every  contention  in  light  of  the
      arguments advanced before us. It is settled law that motive is  not  a
      necessary element  in  deciding  culpability  but  it  is  equally  an
      important missing link which can be used to corroborate  the  evidence
      where conviction is based on circumstantial evidence. In  the  present
      case, the motive of the accused was  stated  to  be  'to  satisfy  his
      lust'. For this purpose  the  prosecution  argued  that  although  the
      accused was married and had children, but his wife was living  at  her
      parent's house. The same fact was deposed by Lalli Bai, mother of  the
      prosecutrix  (PW4).  The  Trial  Court  accepted  the  said  argument.
      However, the High Court rightly refused to rely only on the  statement
      of PW4 to establish the said  fact.  Further,  it  is  not  adequately
      established as to for how long the wife of the accused was not  living
      with him. The burden to prove this fact is on the prosecution and  not
      on the accused. The prosecution also tried  to  impute  bad  character
      upon the accused. The High Court rightly held that such evidences  are
      not relevant. Sections 53 and 54 of the Indian Evidence Act, 1972 were
      discussed at length by the High Court and it was held that the accused
      neither tried to prove his previous good character, nor the said  fact
      was in question. An  earlier  instance  of  attempt  to  rape  by  the
      accused, as deposed by the mother of the prosecutrix  (PW4),  Savitri,
      aunt of the deceased (PW5) and Rajendra  Kumar  Sen,  brother  of  the
      deceased (PW6), is not established at any stage of  the  trial.  These
      witnesses are not only interested witnesses but they themselves stated
      that their evidence is hearsay. The prosecution neither  produced  any
      complaint/FIR  nor  any  record  was  shown  that  any  such  incident
      occurred.  Thus,  the  prosecution  squarely  failed  to  impute   bad
      character upon the accused. Further, the motive  is  also  not  firmly
      established against the accused.


   8. The next aspect for consideration before us is the non-explanation  by
      the accused of the injuries sustained  by  him.  As  per  the  medical
      examination, the accused had  certain  abrasions  on  his  wrists  and
      ankles and also some injuries on private part. PW24 - the  doctor  who
      examined the accused, deposed that he examined one  Narendra  S/o  Ram
      Babu. But this doctor failed to identify the accused before the Court.
      The prosecution also failed to produce any evidence in order to  prove
      that the name of the father of the accused is Ram Babu.  The  name  of
      accused's father is Ram Bahore and it is nowhere shown that Ram Bahore
      is alias of Ram Babu. With these discrepancies, the High Court refused
      to accept that the accused was the same person who was examined by the
      doctor PW24.  However, even if it is presumed that  there  could  have
      been error in writing down the name of the father of the  accused  and
      due to long time, the doctor failed to identify the accused,  yet  the
      medical evidences are not clinching enough. The  accused  is  a  young
      man, certain abrasions can be regularly sustained during the day while
      working in and around. Moreover, the  accused  having  worked  in  his
      cousin's wedding might have received the  abrasions.  Medical  opinion
      for explanation to such abrasion is that such abrasion can  occur  due
      to itching also. The  other  injuries  on  private  part,  in  medical
      opinion, could be a result of sexual intercourse with  his  wife.  The
      accused is a married man having children and  it  is  not  established
      that his wife was living away from him. Hence, non-explanation of  the
      above said injuries is not an  incriminating  circumstance  so  as  to
      attribute any criminality upon the accused.


   9. The next incriminating fact  is  the  recovery  of  the  blood-stained
      underwear of the deceased made at the instance of  the  accused,  from
      the house of the accused. However, upon careful  examination,  serious
      doubts are cast upon the incident of recovery. The witnesses  to  this
      seizure memo are Lalit Kumar Sen (PW9) and Dayanand (PW22). As per the
      deposition of PW9, many doubts are created. He deposed that red colour
      underwear as well as an underwear of accused were seized. However,  he
      did not state as to whom did the red colour underwear belong. He  also
      did not mention the place from where  it  was  recovered  nor  did  he
      mention the manner in which the articles were  seized.   PW22  further
      made  certain  doubtful  revelations  stating  that  at  the  time  of
      recovery, only he, accused and the police were  present.  However,  he
      only confirms the recovery of a red colour  underwear, but  the  place
      and surrounding of the place of recovery were not deposed by PW22. The
      deposition of the above two  witnesses  raises  various  doubts  about
      recovery of material facts. Therefore, the High Court correctly raised
      doubt that it is highly unnatural  that  the  accused  will  keep  the
      underwear in a pitcher in his own house.


  10. The prosecution failed to prove its case  on  one  more  aspect.  Upon
      recovery of the underwear of the accused and  the  deceased,  although
      the same were sent for Serological examination and it was proved  that
      blood was found on the underwear of the  accused,  but  no  blood  was
      found on the undergarments of the deceased. During investigation,  the
      blood sample and  soil  samples  were  collected  from  the  place  of
      incident. However, it is shocking to note that none of  these  samples
      were sent for FSL examination. The said examination  could  have  been
      very useful to establish the identity of the accused. There is thus  a
      serious lacunae in the investigating procedure that a  necessary  test
      was not conducted.


  11. The underwear of deceased vide identification memo Ex.P/14 was put for
      test identification.  PW4 deposed that she identified the underwear as
      the same was torn from the bottom. However, when this witness was  put
      to cross-examination, she deposed that none of  the  underwears  which
      were put for identification, was torn from the bottom. PW4 also stated
      that the  underwear  was  blood-stained.  However,  it  is  proved  by
      serological report that no blood was found on  the  underwear  of  the
      deceased.  Upon  perusal,  numerous  contradictions  appear  from  the
      statements made by PW4, and  serious  doubt  is  raised  not  only  on
      recovery of the undergarments, but also upon the identification test.






  12. The next evidence is the presence of the accused in the village at and
      around the time of the incident against which the accused has  pleaded
      alibi. The prosecution placed on record the testaments of  Ram  Sunder
      Sen, father of the deceased (PW3),  stating that the accused  came  to
      his house 3-4 times during the night of 18.05.2004.  He  also  deposed
      that on 18.05.2004 at 11.00 P.M.  the accused came to  his  house  and
      asked for bidi, but he was turned back by his wife PW4. PW4 also  made
      deposition to this effect. However, upon cross-examination both  these
      witnesses stated that  this fact was told to the police  officer  upon
      examination.  But no such fact is present in their statements made  to
      the police during investigation. The High Court disbelieved  the  said
      fact as there was a deviation from the earlier statement. Further, the
      High Court examined the  statements  of  the  defence  witnesses,  who
      deposed that on the date of  incident,  the  accused  was  present  in
      another village to attend the marriage function  of  his  cousin.  The
      defence witnesses specifically deposed that the  accused  was  present
      during and after the function on 18.05.2004  and  the  accused  stayed
      there at night. It was further deposed that the accused left  for  his
      home only after breakfast. This  also  explains  the  absence  of  the
      accused in his village in the morning of the incident. The High  Court
      rightly relied upon the statement of an independent  witness,  namely,
      Kalawati (PW1) who deposed that the accused was not in the village  on
      the fateful night as he had gone to the  marriage  ceremony  in  other
      village. The said factum of marriage ceremony and  function  in  other
      village has been admitted even by the family members of the deceased.



  13. The prosecution also placed on record  an  incident  alleged  to  have
      occurred a few days prior to the fateful day, when  the  accused  made
      the deceased sit on his lap and kissed her, for which the accused  was
      rebuked and beaten by the father of the deceased.  However,  in  their
      statement to the police, no such fact was deposed by PW3 or PW4 and it
      was only before the Court that the above witnesses stated  this  fact.
      Even if the said fact is presumed to  be  true,  we  concur  with  the
      reasoning of the High Court that mere snugging the deceased  once,  in
      itself, is no ground to connect the accused with the alleged incident.




  14. The prosecution also  adduced  the  testimony  of  Sanjeev  Kumar  Sen
      (PW28), cousin  of  the  deceased,  who  alleged  that  in  the  night
      intervening between 18th and 19th May, 2004 at  about  4:30  A.M.,  he
      woke up to attend the call of nature when he saw  the  accused  coming
      towards his house from the Badi of the house of  Vanshgopal  Sarpanch.
      Very close to that place, the deceased was found dead in the  morning.
      However, upon careful  examination,  it  can  be  gathered  that  this
      witness did not state such an important fact to  the  police  officer.
      Although he alleged that the said fact was known to him yet the report
      was lodged against an unknown person. Further, if the veracity of this
      statement is tested,  it fails  to  adduce  confidence.  PW28  himself
      stated that he saw the accused at 4:30  A.M.,  however,  none  of  the
      details as to the distance, surrounding, etc. were given.  The  source
      of light in which the witness saw the  accused  is  also  not  stated.
      Therefore, the High Court correctly rejected the testimony of PW28.


  15. The present case is, thus, based purely on circumstantial evidence. It
      is a settled  law  that  when  prosecution  relies  on  circumstantial
      evidence, the following tests to be clearly established:
           (i)   The circumstances from which  an  inference  of  guilt  is
           sought to be drawn, must be cogent and firm;

           (ii)  Those circumstances  should  be  of  a  definite  tendency
           unerringly pointing towards guilt of the accused;

           (iii) The circumstances taken cumulatively should form  a  chain
           so complete that there is no escape  from  the  conclusion  that
           within all human probability the  crime  was  committed  by  the
           accused and none else; and

           (iv)  The circumstantial evidence in order to sustain conviction
           must be complete and  incapable  of  explanation  of  any  other
           hypothesis than that of  the  guilt  of  the  accused  and  such
           evidence should not only be consistent with  the  guilt  of  the
           accused but should be inconsistent with his innocence.



      The prosecution, however, in the present  case,  has  failed  at  the
      foremost to link the accused with the incident.  The  prosecution  has
      the responsibility  to  present  a  chain  of  events.  The  accused's
      culpability could have been established  if  the  blood  samples  were
      tested and matched, the recovery of underwear is not proven to be that
      of the deceased. Otherwise, the recovery was  unnatural  and  did  not
      adduce confidence. One  prosecution  witness  who  is  an  independent
      witness has stated that the accused had gone to another village on the
      date of incident. There were material discrepancies in the  statements
      of the  prosecution  witnesses.  The  testimonies  of  the  interested
      witnesses, namely,  PW3, PW4,  PW5 and PW28  clearly  show  that  they
      materially improvised from their earlier depositions. The accused also
      examined two  defence  witnesses  who  stated  that  the  accused  was
      attending function in some other village on  the  fateful  night.  The
      High Court went into each and  every  material  aspect  of  the  case,
      examined at length the deposition of the witnesses  and  rightly  held
      that the links which are collected by the prosecution have not at  all
      been proved by any cogent evidence and, therefore, it is difficult  to
      hold that it was the accused who committed rape upon the deceased  and
      thereafter killed her.




  16. Thus, in the light of the above discussion, we do not find any  ground
      to interfere with the judgment passed by the High Court.  The  appeals
      are, accordingly, dismissed.




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








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


      New Delhi;


      October 15, 2015

To revert, in the instant case, we have noticed that the contempt proceedings against the Public Service Commission for violation of order dated 26th August, 2011 in C.W.J.C. NO.3892 of 2011 had failed. We have also noticed that the Public Service Commission made all attempts to gather relevant information from the Union Public Service Commission and other State Public Service Commissions to find out the practice followed in the other States. The information received was fully discussed in the light of the particulars of the examination in question and thereafter a conscious decision was taken by the resolution dated 15th January, 2013, details of which have been already extracted. In the light of the above and what has been found to be the true ratio of the decision in Sanjay Singh (supra), we cannot hold that in the present case the action taken by the Bihar Public Service Commission deviates either from the directions of the High Court (dated 26th August, 2011 in C.W.J.C. No. 3892 of 2011) or the decision of this Court in Sanjay Singh (supra). Also, the absence of any plea of mala fide and the uniform application of the principles adopted by the Commission by its resolution dated 15th January, 2013 would lead us to the conclusion that the present would not be an appropriate case for exercise of the power of judicial review. The absence of reasons in the aforesaid resolution, on which much stress has been laid, by itself, cannot justify such interference when the decision, on scrutiny, does not disclose any gross or palpable unreasonableness.On the aforesaid conclusions that we have reached we have to dismiss the appeals. We, therefore, do not consider it necessary to go into the question as to whether it was necessary for the appellants to implead the selected candidates as party respondents to the present proceedings, an issue on which elaborate arguments have been advanced and several precedents have been cited at the bar. For the same reasons the weighty arguments advanced by both sides on the power of the Court to mould the relief in a given case will have to await consideration in a more appropriate case.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                     CIVIL APPEAL NOS.8606-8610 OF 2015
    [ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NOS.8157-8161 OF 2014]

SUNIL KUMAR & ORS.ETC. ETC.              ...APPELLANTS

                            VERSUS

THE BIHAR PUBLIC SERVICE
COMMISSION & ORS.ETC.ETC.              ...RESPONDENTS

                                    WITH
                        CIVIL APPEAL NO.8611 OF 2015
      [ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NOS.11652 OF 2014]
                                    WITH
                        CIVIL APPEAL NO. 8612 OF 2015
      [ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NOS.17816 OF 2014]


                               J U D G M E N T

RANJAN GOGOI, J.


1.    Leave granted.

2.    Applications for Impleadment/ Intervention are allowed.

3.    The refusal of the High Court to interfere  with  the  result  of  the
53rd to 55th Combined (Mains) Competitive Examinations,  2011  held  by  the
Bihar  Public  Service  Commission  (hereinafter   referred   to   as   “the
Commission”) in May-June, 2012 is the subject matter  of  challenge  in  the
present appeals.

4.    The principal basis on  which  interference  of  the  High  Court  was
sought is that in finalizing the results of the Examination  the  Commission
had moderated the marks awarded by the examiners  who  had  scrutinized  the
answer-sheets of the candidates instead  of  scaling  down  the  said  marks
which process was required to be undergone in view  of  the  fact  that  the
examinations,  so  far  as  the  optional  papers  are  concerned,  were  in
different subjects.  It is contended that the course  adopted  was  contrary
to the earlier order of the High  Court dated 26th August, 2011 passed in  a
proceeding registered and numbered  as  C.W.J.C.  No.3892  of  2011  besides
being contrary to the law laid down  by  this  Court  in  Sanjay  Singh  and
Another  Vs. U.P. Public Service Commission, Allahabad and Another[1].

5.    To appreciate the first contention advanced the operative part of  the
order dated 26th August, 2011 passed by the High Court in the  earlier  writ
petition i.e. C.W.J.C. NO.3892 of 2011 may be reproduced hereinbelow:
“16.        In the result, the writ petition is allowed. Respondent  Nos.  2
and 3 would be well-advised to frame Rules, may  be  after  supplanting  the
existing Rules  with  respect  to  conduct  of  examinations,  incorporating
therein the system of moderation, as well as the system of  scaling  of  raw
marks.  The Commission shall  draw  guidelines  from  the  judgment  of  the
Supreme Court in Sanjay Singh Vs. U.P.PSC (supra), as well as the  Rules  of
the Union Public Service Commission, and other Public  Service  Commissions,
etc. This Court will be pleased if the entire process is completed within  a
period of six months from today.  Till then, the  judgment  of  the  Supreme
Court in Sanjay Singh (supra), will guide the  affairs  of  the  Commission,
with respect to all the examinations where the candidate has the  choice  of
optional subjects, in so far as these two concepts are concerned.”


6.    It is contended that the method adopted i.e. moderation  is  in  clear
breach of above directions issued by the High Court  in  its  earlier  order
which is also between the same parties.  No  deviation,  therefrom,  by  the
Public Service Commission was permissible.


7.    Insofar as the decision in Sanjay Singh (supra) is  concerned,  it  is
urged that this Court had clearly  and  categorically  held  the  system  of
moderation is applicable only to cases where the candidates  take  a  common
examination i.e. where there are no optional subjects and all the papers  in
which the candidates appear are the same. In a situation where the  subjects
are different, according to the learned counsel, it has been held in  Sanjay
Singh (supra) that it is the scaling  method which  has  to be   upheld  and
in such situations the system of moderation would not be relevant.   As  the
Combined Civil Services Examination held by the  Public  Service  Commission
involved  taking   of   examination   by   the   candidates   in   different
subjects/papers, the results declared are vitiated  as  the  same  has  been
finalized by following the moderation method.  This, in short, is  the  plea
advanced on behalf of the appellants.

8.    In reply, it is urged on behalf of the Commission that the  format  of
the Civil Services  Examination  is  covered  by  the  Bihar  Civil  Service
(Executive Branch)  and the Bihar Junior Civil Service (Recruitment)  Rules,
1951.  Appendix  'D'  thereto  lays  down  the  syllabus  for  the  combined
competitive examination.  It is urged that apart from  4  (four)  compulsory
papers, the optional papers are divided  into  four  categories/groups  i.e.
Groups 'A', 'B', 'C' and 'D'. While Group 'A' deals with  Literature,  Group
'B' deals broadly with Humanities subjects whereas Group 'C' deals with  Law
and Public Administration; Group 'D'  deals  with  Science  papers/subjects.
Under the Rules, apart from the compulsory papers, a candidate has  to  take
three optional papers out of which not more than two papers can be from  any
one single group.  It is pointed out that the above position  must  be  kept
in mind while scrutinizing the action taken  by  the  Commission  after  the
High Court had passed the order dated 26th August, 2011 in C.W.J.C.  No.3892
of 2011. It is urged that after the said order was rendered  the  Commission
had sought information from the Union Public Service Commission as  well  as
from  certain   State  Public  Service  Commissions   like   Karnataka   and
Maharashtra.  The entire issue including the information received  from  the
Union Public Service Commission and the State  Public  Service  Commissions,
as referred  to  above,  was  discussed  in  detail  in  a  meeting  of  the
Commission held on 15th January, 2013 and a resolution was adopted that  for
evaluation of the answer-sheets of the Combined Competitive  Examination  so
as to achieve uniformity in the results, the following  procedure  would  be
adopted.
|“(i)   |The Chief Examiner acts as a          |
|       |coordinator and guide for the         |
|       |Examiners working under him and is    |
|       |also responsible for objectivity and  |
|       |uniformity in evaluation done by      |
|       |different Examiners.                  |
|(ii)   |Before the start of evaluation of any |
|       |subject/ paper, the Chief Examiner/   |
|       |Examiners shall hold a in-depth,      |
|       |detailed and minute discussion with   |
|       |the Examiners with regard to all      |
|       |questions of the question paper and   |
|       |with a purpose of having uniformity in|
|       |evaluation, a clear-cut standard of   |
|       |evaluation shall be explained with    |
|       |regard to through and prescribed      |
|       |answer of each question and process of|
|       |marking.                              |
|(iii)  |The Chief Examiner shall must examine |
|       |all answer-books getting marks of more|
|       |than 60% (sixty percent) and below 30%|
|       |(thirty percent).  At least 15% of    |
|       |evaluated answer-books shall be       |
|       |examined by him.                      |
|8.    After due consideration of above facts, |
|it is the opinion of the Commission that the  |
|uniformity in evaluation has been ensured by  |
|adopting the method of moderation in the      |
|evaluation of answer-books of different       |
|subjects/papers of 53rd to 55th Combined Joint|
|(Main) Competitive Examinations. Therefore,   |
|further actions be taken for publication of   |
|result of the said examinations.”             |


9.    It may be also pointed out  in  this  regard  that  the  gist  of  the
information received from the Union Public Service Commission and the  State
Public Service Commissions have been recorded in the said  resolution  which
is, inter alia, to the effect that neither the Commission nor the  Karnataka
or Maharashtra Public Service Commissions had adopted or adopts  the  system
of scaling.

10.   Insofar as the order of the High Court  dated  26th  August,  2011  in
C.W.J.C. NO.3892 of 2011 is concerned, it is pointed out  that  with  regard
to non-implementation of the said directions a contempt petition  was  filed
before the High Court which was  dismissed  by  order  dated  16th  October,
2012.  It is urged that on a cumulative consideration of the format  of  the
examination; the practice followed by the Union  Public  Service  Commission
and different State Public Service Commissions and other relevant facts  the
Bihar Public Service Commission,  by  its  resolution  dated  15th  January,
2013, had taken a conscious decision details of which  have  been  extracted
above.  The Commission also specifically denies that this  Court  in  Sanjay
Singh (supra) had laid down any principle of law to the  effect  that  in  a
public examination involving different subjects the scaling  method  has  to
be necessarily adopted to bring uniformity in the results.   It  is  pointed
out that this  Court  had  merely  observed  that  scaling  is  one  of  the
available methods which could be applied in such situations i.e.  where  the
examination is in different subjects.   It  is  also  pointed  out  that  in
Sanjay Singh (supra) the difficulties and  preconditions  necessary  in  the
practical application of  the  principle  of  scaling  down  had  also  been
noticed.  On the basis of the said facts, it is submitted  that  there  will
be no scope for  this  Court  to  understand  that  any  binding  principle,
direction or guidelines has been laid down in Sanjay Singh (supra) so as  to
bind the Commission to any specific course  of  action  while  conducting  a
public examination, the format of which prescribes different subjects.

11.   It is further contended on behalf of  the  Commission  that  being  an
autonomous body the Commission would be authorized  and  competent  to  take
its  independent  decision,  of  course,  having  due  regard  to   judicial
directions and pronouncements and so long  such  decisions  are  taken  bona
fide and are not arbitrary the scope of judicial review  to  scrutinize  the
decisions of the Commission would be circumscribed.  In this  regard  it  is
also pointed out that, admittedly, it is  not the case of the  appellants  –
writ petitioners  that   any  mala  fide   is  attributable  to  the  Public
Service Commission in the conduct of examination and the declaration of  the
results.

12.   Having considered the rival submissions advanced before us, we are  of
the view that the question that calls for an answer in the present  case  is
whether this Court in Sanjay Singh (supra) had laid down  any  principle  or
direction  regarding  the  methodology  that  has  to  be  adopted  by   the
Commission while assessing the answer-scripts of the candidates in a  public
examination and specifically whether any such  principle  or  direction  has
been laid down governing public examinations  involving  different  subjects
in which the candidates are  to  be  tested.   Closely  connected  with  the
aforesaid question is  the  extent  of  the  power  of  judicial  review  to
scrutinize the decisions taken by another constitutional authority i.e.  the
Public Service Commission in the facts of the present case.

13.   Before adverting to the aforesaid issue we may  briefly  indicate  our
views with regard to the order of the High Court dated 26th August, 2011  in
CWJC No. 3892 of 20911 on the basis of which the action  of  the  Commission
is sought to  be  faulted.  Reading  the  operative  directions,  reproduced
hereinabove, we fail to find any direction of the  High  Court  which  would
bind  the  Commission  to  any  particular  course  of  action.   There   is
sufficient discernible flexibility in the said order  leaving  it  open  for
the  Commission  to  modulate  its  action  as  the  facts  surrounding  the
particular examination(s) that is involved may require.

14.   We have read and considered the judgment in Sanjay Singh (supra).   In
the said case, this Court was considering the  validity  of  the  selections
held for appointment in  the  U.P.  Judicial  Service  on  the  basis  of  a
competitive examination in which the Rules prescribed five (05)  papers  all
of which were compulsory for all the candidates.  There is no  dispute  that
the U.P. Public Service Commission in the aforesaid  case  had  scaled  down
the marks awarded to the candidates by following the scaling  method.   This
Court, after holding that the Judicial  Service  Rules  which  governed  the
selection  did  not  permit  the  scaled  down  marks  to  be   taken   into
consideration, went into the further question of   the  correctness  of  the
adoption  of  scaling  method  to  an  examination  where  the  papers  were
compulsory and common to all the candidates.  In doing so, it  was  observed
as follows:

“The moderation procedure referred to in the earlier para  will  solve  only
the problem of examiner variability, where  the  examiners  are   many,  but
valuation of answer-scripts is in respect of a single  subject.   Moderation
is no answer where the problem is to find inter  se  merit  across   several
subjects,  that  is,  where  candidates  take   examination   in   different
subjects. To solve the problem of inter se merit across different  subjects,
 statistical experts have  evolved  a  method  known  as  scaling,  that  is
creation  of scaled score. Scaling places the scores  from  different  tests
or test forms  on  to  a  common  scale.  There  are  different  methods  of
statistical scoring.  Standard score method, linear standard  score  method,
normalized equipercentile method are some  of  the  recognized  methods  for
scaling.” (Para 24)

      It was furthermore observed:
“Scaling  process, whereby raw marks in different subjects are  adjusted  to
a common  scale, is a recognized method  of  ensuring  uniformity  inter  se
among the  candidates who have taken  examinations  in  different  subjects,
as, for  example, the Civil Services Examination.” (Para 25)


15.   After holding as above, this Court, on due  consideration  of  several
published works  on  the  subject,  took  note  of  the  preconditions,  the
existence or fulfillment of which, alone, could ensure an acceptable  result
if the scaling method is to be adopted. As in Sanjay Singh (supra) the  U.P.
Public Service  Commission  had  not  ensured  the  existence  of  the  said
preconditions the consequential effects in the  declaration  of  the  result
were found to be unacceptable. It was repeatedly pointed out by  this  Court
(Paras 36 and 37) that the adoption of the scaling method  had  resulted  in
treating unequals as equals.    Thereafter in Para 45  this  Court  held  as
follows :
“45.        We may now summarize the position regarding scaling thus :

(i)   Only certain situations warrant adoption of scaling techniques.

(ii)  There are number of methods of statistical scaling, some  simple   and
some complex. Each method or system has its merits and  demerits and can  be
adopted only under certain conditions or  making certain assumptions.

(iii) Scaling will be useful and  effective  only  if  the  distribution  of
marks  in  the  batch  of  answer  scripts  sent   to   each   examiner   is
approximately the same as the distribution of marks in the batch  of  answer
scripts sent to every other examiner.

(iv)  In the linear standard method, there is no guarantee that  the   range
of scores at various levels will yield candidates of  comparative ability.

(v)   Any scaling method should be under continuous review  and   evaluation
and improvement, if it is to be a reliable tool in the  selection process.

(vi)  Scaling may, to a limited extent, be successful in  eliminating    the
general variation which  exists  from  examiner  to  examiner,   but  not  a
solution to solve examiner variability arising from the  “hawk-dove”  effect
(strict/ liberal valuation).”


16.         Moreover, in para 46, this Court  observed  that  the  materials
placed before it did not disclose that the Commission  or  any  Expert  Body
had kept the above factors in mind for deciding to introduce the  system  of
scaling.  In fact,  in  the  said  paragraph  this  Court  had  observed  as
follows:
“We have already demonstrated the anomalies/ absurdities arising   from  the
scaling system used. The  Commission  will  have  to  identify  a   suitable
system of evaluation, if  necessary  by  appointing  another  Committee   of
Experts. Till such new system is in place, the  Commission  may  follow  the
moderation system set out in para 23 above with appropriate  modifications.”
(Para 46)

17.   In Sanjay Singh (supra) an earlier decision of  this  Court  approving
the scaling method i.e. U.P. Public Service Commission Vs.  Subhash  Chandra
Dixit[2]  to a similar examination was also noticed.   In  paragraph  48  of
the judgment in Sanjay Singh (supra) it was held  that  the  scaling  system
adopted in Subhash Chandra Dixit (supra) received this Court's  approval  as
the same was adopted by the Commission after an  indepth  expert  study  and
that the approval of the scaling method by this  Court  in  Subhash  Chandra
Dixit (supra) has to be confined to the facts of that case.

18.   Finally, in paragraph 51 of the report in  Sanjay  Singh  (supra)  the
Court took note of the submission made on behalf of the Commission  that  it
is not committed to any particular system and “will  adopt  a  different  or
better system if the present system is found to be defective”.
19.   In Sanjay Singh (supra) the Court was considering the validity of  the
declaration of the results  of  the  examination  conducted  by  the  Public
Service Commission under the U.P. Judicial Service Rules by adoption of  the
scaling method. This, according to this Court, ought not to have  been  done
inasmuch as the scaling system is more  appropriate  to  an  examination  in
which the candidates are required to write the papers in different  subjects
whereas in the examination in  question  all  the  papers  were  common  and
compulsory. To come to the aforesaid conclusion, this Court had  necessarily
to analyze the detailed parameters inherent in the scaling method  and  then
to reach its conclusions with regard to the impact of the  adoption  of  the
method in the examination in  question  before  recording  the  consequences
that had resulted on application of the  scaling  method.   The  details  in
this regard have already been noticed. (Paras 45 and 46)

20. The entire of the discussion and conclusions  in  Sanjay  Singh  (supra)
was with regard to the question of the suitability of the scaling system  to
an examination where the question papers were compulsory and common  to  all
candidates. The deficiencies and  shortcomings  of  the  scaling  method  as
pointed out and extracted above were in the above context.  But  did  Sanjay
Singh (supra) lay down any binding and inflexible requirement  of  law  with
regard to adoption of  the  scaling  method  to  an  examination  where  the
candidates are tested in different subjects as in the  present  examination?
Having regard to the context in  which  the  conclusions  were  reached  and
opinions were expressed by the Court it is difficult  to  understand  as  to
how this Court in Sanjay Singh (supra) could  be  understood  to  have  laid
down any binding principle of law or  directions  or  even  guidelines  with
regard to holding of examinations; evaluation of papers and  declaration  of
results by the Commission.  What was held, in our view, was that scaling  is
a method which was generally unsuitable to  be  adopted  for  evaluation  of
answer papers of subjects common to all candidates and that the  application
of  the  said  method  to  the  examination  in  question  had  resulted  in
unacceptable results. Sanjay Singh (supra) did not decide that  to  such  an
examination i.e. where the papers are common the system of  moderation  must
be applied and to an examination where the  papers/subjects  are  different,
scaling  is  the  only  available  option.   We  are  unable  to  find   any
declaration of law or precedent or principle in Sanjay Singh (supra) to  the
above effect as has been canvassed before us on behalf  of  the  appellants.
The decision, therefore, has to be understood to be confined  to  the  facts
of the case, rendered upon a consideration of  the  relevant  Service  Rules
prescribing a particular syllabus.

21.   We cannot understand  the  law  to  be  imposing  the  requirement  of
adoption of moderation to a particular kind of examination  and  scaling  to
others.  Both are, at best, opinions, exercise of which requires an  indepth
consideration of questions that are more suitable for  the  experts  in  the
field.   Holding  of  public  examinations   involving   wide   and   varied
subjects/disciplines is a complex task which defies an instant  solution  by
adoption of any singular process or by a strait jacket  formula.   Not  only
examiner variations and variation in award of marks  in  different  subjects
are issues to be answered, there are several other questions that  also  may
require to be dealt with.  Variation in the strictness of the questions  set
in a multi-disciplinary examination format is one such fine issue  that  was
coincidentally noticed in Sanjay Singh (supra).  A  conscious  choice  of  a
discipline or a subject by a candidate at the  time  of  his  entry  to  the
University  thereby  restricting  his  choice  of   papers   in   a   public
examination; the standards of inter subject evaluation of answer papers  and
issuance of appropriate directions to evaluators in different  subjects  are
all relevant areas of  consideration.   All  such  questions  and,  may  be,
several others not identified herein are required to  be  considered,  which
questions, by their very nature should be left to the expert bodies  in  the
field, including, the  Public  Service  Commissions.   The  fact  that  such
bodies including the Commissions have erred or have acted  in  less  than  a
responsible manner in the past cannot be a reason for  a  free  exercise  of
the judicial power which by its very nature will have to  be  understood  to
be, normally, limited to instances of  arbitrary  or  malafide  exercise  of
power.

22.   To revert, in the instant case, we  have  noticed  that  the  contempt
proceedings against the Public Service Commission  for  violation  of  order
dated 26th August, 2011 in C.W.J.C. NO.3892 of 2011  had  failed.   We  have
also noticed that the Public Service Commission made all attempts to  gather
relevant information from the Union  Public  Service  Commission  and  other
State Public Service Commissions to find out the practice  followed  in  the
other States.  The information received was fully discussed in the light  of
the particulars of the examination in question and  thereafter  a  conscious
decision was taken by the resolution dated 15th January,  2013,  details  of
which have been already extracted.  In the light of the above and  what  has
been found to be the true ratio of the decision in Sanjay Singh (supra),  we
cannot hold that in the present case the action taken by  the  Bihar  Public
Service Commission deviates either from the directions  of  the  High  Court
(dated 26th August, 2011 in C.W.J.C. No. 3892 of 2011) or  the  decision  of
this Court in Sanjay Singh (supra).  Also, the absence of any plea  of  mala
fide  and  the  uniform  application  of  the  principles  adopted  by   the
Commission by its resolution dated 15th January, 2013 would lead us  to  the
conclusion that the present would not be an appropriate  case  for  exercise
of the power of judicial review.  The absence of reasons  in  the  aforesaid
resolution, on which much stress has been laid, by  itself,  cannot  justify
such interference when the decision, on  scrutiny,  does  not  disclose  any
gross or palpable unreasonableness.

23.   On the aforesaid conclusions that we have reached we have  to  dismiss
the appeals. We, therefore, do not consider it  necessary  to  go  into  the
question as to whether it was necessary for the appellants  to  implead  the
selected candidates as party respondents  to  the  present  proceedings,  an
issue  on  which  elaborate  arguments  have  been  advanced   and   several
precedents have been cited at the bar.  For the  same  reasons  the  weighty
arguments advanced by both sides on the power of  the  Court  to  mould  the
relief in  a  given  case  will  have  to  await  consideration  in  a  more
appropriate case.
24.    Consequently  and  in  the  light  of  the  above,  the  appeals  are
dismissed, however, without any order as to cost.   All interim  orders  are
vacated.

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


                                          ..........…....................,J.
                                                    (N.V. RAMANA)

NEW DELHI
OCTOBER 14, 2015.
-----------------------
[1]    (2007) 3 SCC 720
[2]    (2003) 12 SCC 701

legal presumption under Section 20 can be drawn are wholly absent.=The case of the prosecution is that the appellant-accused was, at the relevant point of time working as Deputy Tahsildar, Civil Supplies Mandal Revenue Officer, Kurnool in the State of Andhra Pradesh. The complainant PW- 1 K. Sudhakar Reddy had a Fair Price Shop at Narsimha Reddy Nagar Kurnool. It is alleged by the complainant that the appellant–accused used to collect Rs.50/- per month from each fair price shop dealer in Kurnool as monthly mamool and when he visited the shop of the complainant on 17.9.1993 he demanded Rs.300/- towards the monthly mamools from April 1993 by threatening to seize the stocks and foist a case against him. As the complainant was not willing to pay the said amount he had approached PW-7, Deputy Superintendant of Police, ACB, Kurnool and submitted Exh.P.1 complaint in writing on 18.9.1993 to him.= It is settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7, since demand of illegal gratification is sine-qua-non to constitute the said offence. The above also will be conclusive insofar as the offence under Section 13(1)(d) is concerned as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. It is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Unless there is proof of demand of illegal gratification proof of acceptance will not follow. Reference may be made to the two decisions of three-Judge Bench of this Court in B. Jayaraj vs. State of Andhra Pradesh [(2014) 13 SCC 55] and P. Satyanarayna Murthy vs. The District Inspector of Police and another [(2015 (9) SCALE 724]. In the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent. The judgments of the Courts below are, therefore, liable to be set aside. For the aforesaid reasons the appeal is allowed and the conviction of the appellant under Section 7 and under Section 13(1)(d) read with Section 13(2) of the Act and the sentences imposed are set aside and he is acquitted of the charges. The bail bond, if any, furnished by the appellant be released.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO.  1355 OF 2015
               [ Arising out of  SLP (Crl.) No.2958  of 2011]


     N. Sunkanna                             …     Appellant

                                   versus

State of Andhra Pradesh                   …    Respondent



                               J U D G M E N T


C. NAGAPPAN, J.


Leave granted.


This appeal is directed against the Judgment dated 2.7.2010  passed  by  the
High Court of Andhra Pradesh affirming the conviction  and  sentence  passed
by the Additional Special Judge for SPE and  ACB  cases,  City  Civil  Court
Hyderabad,  whereby  the  appellant-accused  has  been   found   guilty   of
commission of offences under Sections 7, 13(1)(d) read  with  Section  13(2)
of the Prevention of Corruption Act, 1988. The  appellant-accused  has  been
sentenced to undergo rigorous imprisonment for one  year  for  each  of  the
offences and also to pay a fine of Rs.1000/- in  default  to  suffer  simple
imprisonment for three months.

The case of the prosecution  is  that  the  appellant-accused  was,  at  the
relevant point of time working as Deputy Tahsildar,  Civil  Supplies  Mandal
Revenue Officer, Kurnool in the State of Andhra Pradesh. The complainant PW-
1 K. Sudhakar Reddy had a Fair Price Shop at Narsimha Reddy  Nagar  Kurnool.
It is alleged by the complainant that the appellant–accused used to  collect
Rs.50/- per month from each fair price shop dealer  in  Kurnool  as  monthly
mamool and when he visited the shop  of  the  complainant  on  17.9.1993  he
demanded  Rs.300/-  towards  the  monthly  mamools  from   April   1993   by
threatening to seize the stocks and  foist  a  case  against  him.   As  the
complainant was not willing to pay the said amount he had  approached  PW-7,
Deputy  Superintendant  of  Police,  ACB,  Kurnool  and  submitted   Exh.P.1
complaint in writing on 18.9.1993 to him.

PW-7 the Deputy Superintendant of  Police,  registered  a  case  and  issued
Exh.P.9 F.I.R. On 20.9.1993 he secured PW-2 N.  Ravindranath  Reddy,  Senior
Assistant in the office of  State  Housing  Corporation,  Kurnool  and  LW-3
Abdul Jallel, to act as Panch Witnesses and explained  the  significance  of
chemical  test  to  them.   He  got  the   currency   notes   treated   with
phenolphthalein powder and entrusted the same to  the  complainant.  Exh.P-3
is the pre-trap proceedings.  They reached Mandal Revenue Office Kurnool  at
1.30 p.m.  Thereafter, according to the prosecution the complainant  relayed
pre-arranged signal to them at 1.45 p.m. and they  entered  the  office  and
sodium carbonate solution test was   conducted    on    the    right    hand
fingers of the accused as well as the left  shirt  pocket.  Both  the  tests
proved to be positive and tainted currency notes  were  recovered  from  the
possession of the accused.  On completion of investigation the sanction  was
obtained and charge-sheet was  filed  against  the  appellant-accused.   The
charges were framed to which the accused pleaded not guilty.  In  the  trial
PWs 1 to 8 were examined and Exh. P1 to P9 and M.Os 1 to 9  were  marked  on
the side of the prosecution.  The  accused    filed  written  statement  and
examined DWs 1 to 4 and marked Exh. D1 to D8 on his side. The  plea  of  the
accused was that target was fixed by the Department to collect  contribution
for purchase of National Savings Certificate and the amount that  was  given
by the complainant was towards that only.

We heard Mr. Guntur Prabhakar, learned counsel for the appellant and Mr.  A.
Venkateswara Rao, learned counsel appearing on  behalf  of  the  respondent-
State. The complainant K. Sudhakar Reddy was examined as  PW-1  and  he  did
not support the prosecution case.  He has testified that  Exh.P-1  complaint
is in his hand writing but the contents are not true and he wrote  the  same
as dictated by the ACB officials and he gave the amount  of  Rs.300  to  the
accused with a request  to  purchase  National  Savings  Certificates.   The
prosecution declared him as hostile. PW-2 N. Ravindranath Reddy,  the  Panch
witness had testified that he  was  summoned  by  PW-7  DSP  E.  Damodar  on
20.9.1993 and he went through the complaint and verified the  contents  from
the complainant who acknowledged the fact that the accused  had  demanded  a
sum of Rs.300/- as illegal gratification.  Though the  complainant  did  not
support the prosecution case it is on the aforesaid basis  the  trial  court
as well as the High Court held the offences as proved and in doing  so  they
have also relied on the legal presumption under Section 20 of the Act.

The prosecution examined the other fair price shop  dealers  in  Kurnool  as
PWs 3, 4 and 6 to prove that the accused was receiving monthly mamools  from
them. PWs 4 and 6 did not state so and they  were  declared  hostile.   PW-3
though in the  examination-in-chief  stated  so,  in  the  cross-examination
turned round and stated that the accused never asked any monthly mamool  and
he did not pay Rs.50/- at any time.  The prosecution has  not  examined  any
other witness present at the  time  when  the  money  was  demanded  by  the
accused and also when the money was allegedly handed-over to the accused  by
the complainant. The complainant   himself had disowned  his  complaint  and
has turned hostile and there is no other evidence to prove that the  accused
had made any demand. In short there is no  proof  of  the  demand  allegedly
made by the accused.  The only other material available is the  recovery  of
the tainted  currency  notes  from  the  possession  of  the  accused.   The
possession is also admitted by the accused.   It is settled  law  that  mere
possession and recovery of the  currency  notes  from  the  accused  without
proof of demand will not bring home  the  offence  under  Section  7,  since
demand of illegal gratification  is  sine-qua-non  to  constitute  the  said
offence. The above also will be conclusive  insofar  as  the  offence  under
Section 13(1)(d) is concerned as in the absence of any proof of  demand  for
illegal gratification the use of  corrupt  or  illegal  means  or  abuse  of
position as a public servant to  obtain  any  valuable  thing  or  pecuniary
advantage cannot be  held  to  be  established.  It  is  only  on  proof  of
acceptance of illegal gratification that  presumption  can  be  drawn  under
Section 20 of the Act that such gratification  was  received  for  doing  or
forbearing to do any official act.  Unless  there  is  proof  of  demand  of
illegal gratification proof of acceptance will not follow. Reference may  be
made to the two decisions of three-Judge Bench of this Court in  B.  Jayaraj
vs. State of Andhra Pradesh [(2014) 13 SCC 55] and  P.  Satyanarayna  Murthy
vs. The District Inspector of Police and another [(2015 (9) SCALE 724].
In the present case the primary facts  on  the  basis  of  which  the  legal
presumption under Section 20 can be drawn are wholly absent.  The  judgments
of the Courts below are, therefore,  liable  to  be  set  aside.    For  the
aforesaid reasons the appeal is allowed and the conviction of the  appellant
under Section 7 and under Section 13(1)(d) read with Section  13(2)  of  the
Act and the sentences imposed are set aside  and  he  is  acquitted  of  the
charges. The bail bond, if any, furnished by the appellant be released.

                                                                ……………………….J.
                                                                (M.Y. Eqbal)


                                                                .………………………J.
                                                                (C.Nagappan)


New Delhi;
October  14, 2015

The Kerala Public Service Commission (for short 'the Service Commission') issued a notification dated 28.09.2007 inviting applications from the qualified candidates for appointment to the posts of Sub-Inspector (Trainee). The notification did not specify the number of posts sought to be filled up but mentioned that the posts are sought to be filled up from three sources. They are, “(1) “Category No.315/2007 – Open market (2) Category No.316/2007 – Graduate Ministerial Staff of Police and Vigilance Department, Fingerprint Experts, Fingerprint Searchers of the Finger Print Bureau. (3) Category No.317/2007 – Graduate Police Constables, Head Constables and officers of the corresponding rank in the police Department.”= The High Court held:- “32. Reading of these judgments would show that in none of these cases, Supreme Court had occasion to consider a rule similar to Rule 14(e) or the third proviso to Rule 4 of the Rules of Procedure. On the other hand, the Apex Court had generally dealt with the legal position that when relaxation or concession is given at the preliminary stage, which has no impact on the final ranking, the relaxation so given cannot have any relevance in so far as the final ranking is concerned. While we respectfully follow these principles, in our view, having regard to the fact that Rule 14(e) of the 3rd proviso to rule 4 of the Rules of Procedure govern the selection in question, the general principles laid down by the Apex Court in the judgments relied on by the learned counsel for the petitioners cannot be applied to the facts of these cases.” and distinguished three earlier judgments of this Court Chattar Singh & Others v. State of Rajasthan & Others, (1996) 11 SCC 742, Andhra Pradesh Public Service Commission v. Baloji Badhavath & Others, (2009) 5 SCC 1 and Jitendra Kumar Singh & Another v. State of Uttar Pradesh & Others, (2010) 3 SCC 119. In our opinion, the conclusion reached by the High Court is erroneous. The preliminary examination for shortlisting candidates who would be eligible to take the Rule 3 examinations has no statutory basis. Neither the Kerala S&S Rules nor the Rules of Procedure contemplate such preliminary examination. However, this Court recognized[4] existence of a legal authority to conduct a preliminary examination wherever an unmanageably large number of applications are received for filling up a limited number of posts. Rule 14(e) of the Kerala S&S Rules and Rule 4 of the Rules of Procedure relied upon by the High Court refer to ‘ranked list’ - a defined expression under Rule 2(g) of the Rules of Procedure. Such ‘ranked-list’ is prepared only pursuant to the Rule 3 examinations. A preliminary screening test is outside the purview of the Rule 3 examinations. Therefore, irrespective of the content of Rule 14(e) of the Kerala S&S Rules or the 3rd proviso to Rule 4 of the Rules of Procedure relied upon by the High Court, these Rules can have no application in the context of preparation of a ‘shortlist’ pursuant to a preliminary examination.Therefore, the basic premise on which the High Court sought to distinguish the three judgments relied upon by the appellants (referred to supra) is legally untenable. The impugned judgment rightly understood the 3 judgments relied upon by the appellants herein as laying down a principle that a relaxation or concession given at the preliminary stage cannot have any relevance in determining the merit of the candidate.In the circumstances, we are of the opinion that the impugned judgment is unsustainable and is accordingly set-aside. The appeals are allowed with no order as to costs

                                                              Non-Reportable

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.8536 OF 2015
      (Arising out of Special Leave Petition (Civil) No.28428 of 2014)

Ajithkumar P. & Others                       ...  Appellants
            Versus
Remin K.R. & Others                          …  Respondents


                                  WITH

                       CIVIL APPEAL NO. 8537  OF 2015
      (Arising out of Special Leave Petition (Civil) No.28743 of 2014)

Girilal D.                                        ...  Appellant
            Versus
Nidheesh B. & Others                         …  Respondents



                               J U D G M E N T


Chelameswar, J.

1.    Aggrieved by the common judgment dated 08.08.2014 of  the  High  Court
of Kerala in O.P.(KAT) No. 239 of 2014 and O.P.(KAT) No. 112  of  2014,  the
unsuccessful  petitioners  therein  preferred  these   two   special   leave
petitions.


 2.   Leave granted.

 3.   The above-mentioned Original Petitions  (writ  petitions)  were  filed
aggrieved by the order dated 20.02.2014 passed by the Kerala  Administrative
Tribunal (for short 'the Tribunal') by which the Tribunal  disposed  of  the
three original applications O.A. Nos.2395/13, 2587/13 and 58/14.

      4.    The background facts of the instant litigation are as follows:

            The Kerala Public Service Commission  (for  short  'the  Service
Commission') issued a notification dated  28.09.2007  inviting  applications
from the qualified candidates for appointment to the posts of  Sub-Inspector
(Trainee).  The notification did not specify the number of posts  sought  to
be filled up but mentioned that the posts are sought to be  filled  up  from
three sources.  They are,
“(1)  “Category No.315/2007 – Open market
(2)   Category No.316/2007  –  Graduate  Ministerial  Staff  of  Police  and
Vigilance Department, Fingerprint  Experts,  Fingerprint  Searchers  of  the
Finger Print Bureau.
(3)   Category No.317/2007 – Graduate  Police  Constables,  Head  Constables
and officers of the corresponding rank in the police Department.”





5.    It is also specified in the notification that the  vacancies  will  be
apportioned among the three categories mentioned above  in  accordance  with
certain orders issued earlier by the Government of Kerala,  the  details  of
which are not necessary for the purpose of this judgment.

6.    There are  a  set  of  rules  known  as  'The  Kerala  Public  Service
Commission Rules of Procedure' (for short “Rules of Procedure”),  containing
the procedure to be followed by the Service Commission in making  selections
for filling up any posts in the service of the State of  Kerala.   When  the
Service Commission is so called upon, the Service Commission  is  authorised
to conduct one or more of the examinations indicated under  Rule  3  of  the
said Rules  to  assess  merit  of  candidates  who  seek  appointment.   The
relevant portion of the Rule reads:
      “3. The Commission  may  conduct  all  or  any  one  or  more  of  the
following examinations to assess the merits  of  candidates  considered  for
recruitment to a service or post;

(i)   Written Examination
(ii)  Practical Test
(iii) Physical Efficiency Test
(iv)  Oral Test (Interview)
(v)   Any other test or examination, which the Commission may  deem  fit  to
hold.”

      7.    Further, under Rule 4 wherever the  Service  Commission  decides
to conduct either a written examination or a  practical  test  or  both  for
filling up any posts, the Service Commission is  required  to  announce  the
following information:
“(i)  Announce:
(a)   the qualifications required of the candidates for the examination;
(b)   the conditions of admission to the examination including the fees;
(c)   the subjects, Scheme or syllabus of the examination; and
(d)   the number of vacancies to be filled from  among  the  candidates  for
the examination.”


       8.     In  response  to  the  notification,  the  Service  Commission
received about 42,000 (forty two thousand) applications.

       9.     For  the  recruitment  in  question,  the  Service  Commission
admittedly decided to hold a written examination followed by  an  oral  test
(contemplated  under  Rule  3,  hereinafter   referred   to   as   ‘Rule   3
examinations’ for the sake of convenience).  However, in view of  the  large
number of applications received, the Service Commission thought  it  fit  to
shortlist candidates who could  be  permitted  to  appear  for  the  Rule  3
examinations by conducting a preliminary  examination  for  all  the  42,000
applicants.

10.   The Commission initially opined that 2000, out  of  the  total  42000,
applicants could be short-listed through such  examination  process.   After
the examination was conducted, on examining  the  list  of  2000  successful
candidates (who stood at the  top  of  the  list),  the  Service  Commission
reached a tentative conclusion that subjecting only  those  2000  candidates
for the Rule 3 examinations may not  yield  enough  candidates  to  fill  up
vacancies belonging  to  various  reserved  categories  (SC,  ST  and  OBC).
Therefore, the Service Commission decided to  permit  some  more  candidates
belonging to various reserved categories.  The last  of  the  abovementioned
2000 candidates secured 49 marks out of a total of 100 marks for  which  the
examination was conducted.  The Service Commission,  therefore,  decided  to
permit various reserved category candidates, who  secured  marks  above  the
cut-off marks specified in that behalf by the Service Commission.  The  cut-
off marks so specified with respect to each of the reserved  categories  are
as follows:-
            “Ezhava         46
            S.C.            45
            S.T.            32
            Muslim          45
            IC/AI                 45
            OBC             47
            Viswakarma      46
            SIUC Nadar      46
            OX              42
            Dheevara        46
            Hindu Nadar           44”

      11.    Pursuant  to  such  exercise,  another  657  candidates  became
eligible to appear in the Rule 3 examinations.







      12.   The decision of the Service Commission to  relax  cut-off  marks
with  respect  to  reserved  category  candidates  came  to  be   challenged
initially before  the  Kerala  Administrative  Tribunal.   In  view  of  the
Tribunal’s  decision  dated  13.09.2012  dismissing  the  applications,  the
matter was further carried by way of writ petition to the Kerala High  Court
unsuccessfully.  Eventually, the matter reached this  Court  in  SLP....(CC)
No. 14564 of 2013, which stood dismissed by an order dated 26.08.2013.


      13.   The  Service  Commission  conducted  the  Rule  3  examinations,
selected 838 candidates and published a “ranked list”[1] on 07.09.2015.

      14.   Thereafter,  candidates  were  sent  for  training.   Those  who
successfully completed the training were appointed and given posting.    The
appellants are among candidates so appointed, belonging to various  reserved
categories.   They  were  appointed   against   open   category   vacancies.
However, they were not among the  top  2000  candidates  identified  in  the
preliminary screening test, but appeared for  the  Rule  3  examinations  by
virtue of the relaxation granted in favour of the  candidates  belonging  to
various reserved classes.

      15.   Meanwhile, various  original  applications,  out  of  which  the
instant appeals arise, came to be filed before  the  Tribunal.   The  relief
sought in one of the applications is:
“(a)  declare that the inclusion of the candidate, who secured less than  49
marks in the preliminary examination, in the main list  of  Annexure  A6  is
illegal.

(b)   direct the 3rd respondent to remove the candidates  who  secured  less
than 49 marks in the preliminary examination from the main list of  Annexure
A6.

(c)   direct the 3rd respondent not to advise and respondents 1  and  2  not
to appoint any candidate who secured less than 49 marks in  the  preliminary
examination  against  the   vacancies   available   for   open   competition
candidates”.


      16.   Prayers in the other two original applications are similar.


17.   By its order dated 20.02.2014, the Tribunal allowed the said  original
applications.

18.   The Service Commission challenged the said order in Original  Petition
i.e. O.P. (KAT) No. 136 of 2014.  The appellants in  SLP  (C)  No.28428/2014
sought a review of the order dated 20.02.2014 of the Tribunal on the  ground
that the said order would adversely affect their interest though  they  were
not  parties  to  the  said  proceedings.   However,  by  an   order   dated
04.04.2014, the review petition was rejected by  the  Tribunal.   Therefore,
the  unsuccessful  review  petitioners  preferred  Original  Petition  (KAT)
No.239 of 2014 challenging the order of the Tribunal dated 20.02.2014.   The
petitioner in SLP (C) No. 28743 of 2014 was the 2nd petitioner  in  Original
Petition (KAT) No.112/2014 filed challenging the order dated  20.02.2014  of
the Kerala Administrative Tribunal.  Both the Original Petitions along  with
other similar petitions were  heard  together  and  dismissed  by  a  common
judgment and order, impugned in the instant appeals.

      19.   The selection and appointment of the  appellants  is  challenged
on the ground that they are not among the 2000  candidates  who  secured  49
marks and above in the preliminary screening test and therefore, they  would
not have been eligible to appear for the Rule 3  examinations  but  for  the
relaxation granted subsequent to the preliminary  examination.    Therefore,
they cannot  be  appointed  to  open  category  posts.    According  to  the
contesting respondents, relaxation was granted only  to  ensure  that  there
are sufficient number of candidates to  fill  up  reserved  category  posts.
By allowing the appellants to compete  for  the  open  category  posts,  the
Service Commission  acted  in  violation  of  Articles  14  and  16  of  the
Constitution of India.


20.    The  posts  in  question  are  governed  by  the  Kerala  State   and
Subordinate Services Rules 1958 (for short  “Kerala  S&S  Rules”),  made  in
exercise of the power under  Article  309  of  the  Constitution  of  India.
Rule 14 enables the State to reserve  some  of  the  posts  in  question  in
favour of the Scheduled Caste, Scheduled Tribes and other backward  classes.
 Indisputably, some of the posts in question are so reserved.

21.   This Court in R.K. Sabharwal & Others v. State  of  Punjab  &  Others,
(1995) 2 SCC 745, held that where certain number of posts  are  reserved  in
favour  of  candidates  belonging  to  socially  and  economically  backward
classes, meritorious candidates belonging to those  classes  should  not  be
appointed to such reserved posts but shall be appointed to posts falling  in
the open category.

22.   The said principle is reiterated in Ritesh R. Sah v. Dr. Y.L. Yamul  &
Others, (1996) 3 SCC 253, in the context of admissions  to  the  educational
institutions (medical colleges)  where  seats  are  reserved  in  favour  of
students belonging to socially  and  economically  backward  classes.   This
Court on examination of various judgments including R.K.  Sabharwal  (supra)
held;
“17.  …. In view of the legal position  enunciated  by  this  Court  in  the
aforesaid cases the  conclusion  is  irresistible  that  a  student  who  is
entitled to be admitted  on  the  basis  of  merit  though  belonging  to  a
reserved  category  cannot  be  considered  to  be  admitted  against  seats
reserved for reserved category. ..”


23.   It is application of the above principle which is the  subject  matter
of dispute in the instant appeal.  As already  noticed,  appellants  secured
good marks in the Rule 3 examinations, therefore  they  should  be  entitled
for appointment against open category posts by operation  of  the  principle
of  law  laid  down  in  the  above-mentioned  judgments.   The   contesting
respondents however disputed application of  the  above-mentioned  principle
of  law  on  the  ground  that  appellants  could  appear  for  the  Rule  3
examinations  only  pursuant  to  a  concession  granted  by   the   Service
Commission, and cannot therefore be treated as more  meritorious  candidates
who are entitled to be appointed to open category posts.

24.   This submission found favour with the Administrative Tribunal and  the
High Court.   In substance, both the fora held that but for  the  concession
the appellants would not have  been  able  to  participate  in  the  Rule  3
examinations at  all,  consequently  whatever  be  the  performance  of  the
appellants in the  examination,  their  chance  appearance  in  the  Rule  3
examinations does not confer any right on them to claim open category  posts
and they are entitled to compete only for those posts which are reserved  in
favour of the respective class to which  each  of  the  appellants  belongs.
For reaching such a conclusion, the High Court relied upon Rule 14(e)[2]  of
the Kerala S&S Rules and Rule 4[3] of the  Rules  of  Procedure.   The  High
Court held:-
“32.  Reading of these judgments would show that in  none  of  these  cases,
Supreme Court had occasion to consider a rule similar to Rule 14(e)  or  the
third proviso to Rule 4 of the Rules of Procedure.  On the other  hand,  the
Apex Court had generally dealt with the legal position that when  relaxation
or concession is given at the preliminary stage, which has no impact on  the
final ranking, the relaxation so given cannot have any relevance in  so  far
as the final ranking is  concerned.   While  we  respectfully  follow  these
principles, in our view, having regard to the fact that Rule  14(e)  of  the
3rd proviso to rule 4 of the Rules of  Procedure  govern  the  selection  in
question, the general  principles  laid  down  by  the  Apex  Court  in  the
judgments relied on by the learned counsel for  the  petitioners  cannot  be
applied to the facts of these cases.”

and distinguished three earlier judgments of  this  Court  Chattar  Singh  &
Others v. State of Rajasthan & Others, (1996) 11  SCC  742,  Andhra  Pradesh
Public Service Commission v. Baloji Badhavath & Others, (2009) 5 SCC  1  and
Jitendra Kumar Singh & Another v. State of Uttar Pradesh &  Others,   (2010)
3 SCC 119.

25.    In  our  opinion,  the  conclusion  reached  by  the  High  Court  is
erroneous.  The preliminary  examination  for  shortlisting  candidates  who
would be eligible to take the Rule 3 examinations has  no  statutory  basis.
Neither the Kerala S&S Rules nor the Rules  of  Procedure  contemplate  such
preliminary examination.  However, this Court recognized[4] existence  of  a
legal  authority  to  conduct  a   preliminary   examination   wherever   an
unmanageably large number of applications are  received  for  filling  up  a
limited number of posts.  Rule 14(e) of the Kerala S&S Rules and Rule  4  of
the Rules of Procedure relied upon by the High Court refer to ‘ranked  list’
- a defined expression under Rule 2(g) of  the  Rules  of  Procedure.   Such
‘ranked-list’ is prepared only pursuant  to  the  Rule  3  examinations.   A
preliminary  screening  test  is  outside  the  purview  of   the   Rule   3
examinations.  Therefore, irrespective of the content of Rule 14(e)  of  the
Kerala S&S Rules or the 3rd proviso to Rule 4  of  the  Rules  of  Procedure
relied upon by the High Court, these Rules can have no  application  in  the
context  of  preparation  of  a  ‘shortlist’  pursuant  to   a   preliminary
examination.

26.   Therefore, the basic  premise  on  which  the  High  Court  sought  to
distinguish the three judgments relied upon by the appellants  (referred  to
supra) is legally untenable.  The impugned judgment rightly  understood  the
3 judgments relied upon by the appellants herein as laying down a  principle
that a relaxation or concession given at the preliminary stage  cannot  have
any relevance in determining the merit of the candidate.

27.   In the  circumstances,  we  are  of  the  opinion  that  the  impugned
judgment is unsustainable and is accordingly  set-aside.   The  appeals  are
allowed with no order as to costs.


                                                             ….………………………….J.
                                                          (J. Chelameswar)


                                                             ….………………………….J.
                                                    (Abhay Manohar Sapre)

New Delhi;
October 13, 2015
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[1]     A  defined  expression  Rule  2(g)  of  the  Kerala  Public  Service
Commission Rules of Procedure, which is reproduced below:
            “'Ranked List' means the list of candidates arranged in the
order of merit either on the basis of the interview
              or examination or by both;
[2]     Rule 14 (d). Notwithstanding anything contained in this rule,  posts
to which, appointments are made by direct recruitment from a  common  ranked
list prepared on the basis of a common test or interview or both,  shall  be
grouped together for the purposes of observance of  the  rules  relating  to
reservation of appoints.
       (e)    A  supplementary  list  of  sufficient  number   of   suitable
candidates, not less than five times the reservation  quota,  if  available,
from each community or group of communities for the  purpose  of  satisfying
the reservation quota, shall be prepared and published.

      Note. ‘Suitable candidates’ for the purpose of this  rule  shall  mean
candidates with notified  minimum  qualifications  and  marks  in  selection
procedure lowered to the extent necessary.”

[3]     Rule 4.  Where a written examination  and/or  a  practical  test  is
conducted by the Commission for  recruitment  to  a  service  or  post,  the
Commission shall –
      Announce:
      the qualifications required of the candidates for the examination;
      the conditions of admission to the examination including the fees;
      the subjects, Scheme or syllabus of the examination; and
      the number of vacancies to be filled from  among  the  candidates  for
the examination.

      Provided that where the exact number of vacancies to be filled is  not
ascertainable, the Commission may either announce the approximate number  of
vacancies to be filled or state that the number of vacancies  has  not  been
estimated.
      [
      invite applications and consider all the applications so received,
      (iii) make all arrangements for the conduct  of  the  examination  for
the candidates whose applications are found to be in order, and
      (iv)  prepare a  list  in  the  order  of  merit  of  such  number  of
candidates as the Commission may determine from time to time.

      Provided that the Commission may also prepare  separate  ranked  lists
in the order  of  merit  of  candidates  coming  under  separate  groups  in
accordance with the qualifications or other conditions as stipulated in  the
notification.

      Provided further that for the  purpose  of  satisfying  the  rules  of
reservation of appointment to Scheduled Castes, Scheduled Tribes  and  Other
Backward Classes also the Commission may prepare  such  supplementary  lists
as found necessary  from  time  to  time  in  the  order  of  merit  of  the
candidates belonging to such classes.


[4]     Andhra Pradesh Public  Service  Commission  v.  Baloji  Badhavath  &
Others,  (2009)  5  SCC  1;  Duddilla  Srinivasa  Sharma  &  Others  v.   V.
Chrysolite, (2013) 16 SCC 702

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