not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle.= “It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry six workmen, excluding the driver. If those six workmen when travelling in the vehicle, are assumed not to have increased risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the pose, keeping apart the load it was carrying. In the present case the driver of the vehicle was not responsible for the accident. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which by themselves, had gone to contribute to the causing of the accident=There Lordships discussed the position and held ultimately that a defence under Section 149(2)(a)(ii) of the Act was available to an insurer when a claim is filed either under Section 163-A or under Section 166 of the Act. The breach of a policy condition has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence of or production of fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third party. The insurance company to avoid liability, must not only establish the available defence raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the insurance company. Whether such a burden had been discharged, would depend upon the facts breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident.” (emphasis laid by this Court) It becomes very clear from a perusal of the above mentioned case law of this Court that the insurance company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the insurance company. In the instant case, the respondent-Company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle. Further, as has been held in the case of B.V. Nagaraju (supra) that for the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end. In the instant case, it is undisputed that the accident was infact caused on account of the rash and negligent driving of the offending vehicle by its driver, against whom a criminal case vide FIR no. 66 of 2010 was registered for the offences referred to supra under the provisions of the IPC. These facts have not been taken into consideration by either the State Commission or National Commission while exercising their jurisdiction and setting aside the order of the District Forum. Therefore, the judgment and order of the National Commission dated 26.04.2013 passed in the Revision Petition No. 2032 of 2012 is liable to be set aside, as the said findings recorded in the judgment are erroneous in law.

                                                              NON-REPORTABLE


     IN THE SUPREME COURT OF INDIA                        CIVIL APPELLATE
                                JURISDICTION



                       CIVIL APPEAL NOS.49-50 OF 2016
              (Arising Out of SLP (C) Nos.37534-37535 of 2013)



LAKHMI CHAND                                  …………APPELLANT

                                     Vs.

RELIANCE GENERAL INSURANCE           …………RESPONDENT


                                 J U D G M E N T



V. GOPALA GOWDA, J.

Leave granted.

The present appeals arise out of  the  impugned  judgment  and  order  dated
26.04.2013 in Revision Petition No. 2032 of 2012 and order dated  23.07.2013
in Review Petition No. 253 of 2013 passed by the National Consumer  Disputes
Redressal Commission, New Delhi (hereinafter referred to  as  the  “National
Commission”), whereby the petitions challenging the order  dated  29.02.2012
passed by the Haryana State  Consumer  Disputes  Redressal  Commission  were
dismissed.


 The brief facts of the case which are  required  to  appreciate  the  rival
legal contentions advanced by the learned counsel  appearing  on  behalf  of
the parties are stated in brief as hereunder:-



The appellant was the owner of a Tata Motors goods carrying vehicle  bearing
registration No.HR-67-7492. The vehicle was  insured  with  the  respondent-
Company vide policy  No.  15019923334104992  with  effect  from  31.07.2009,
valid upto 30.07.2010. The risk covered in this policy was to  the  tune  of
Rs.2,21,153/-. The said vehicle  met  with  an  accident  on  11.02.2010  on
account of rash and negligent  driving  of  the  offending  vehicle  bearing
registration no. UP-75-J 9860. In this regard, an FIR No.66  of  2010  dated
11.02.2010 was registered with the  jurisdictional  Police  Station,  Sadar,
Fatehabad, for the offence punishable under Sections 279, 337, 304A and  427
of the Indian Penal Code (hereinafter referred to as “the IPC”).



The appellant incurred expenses amounting to Rs.1,64,033/-  for  the  repair
of his vehicle and also informed the respondent- Company about the  accident
and damage caused to  his  vehicle.  In  this  connection,  the  respondent-
Company appointed one Mr. Atam Prakash Chawla, as  the  Surveyor  to  assess
the damage caused to the said vehicle. After  inspecting  the  vehicle,  the
Surveyor assessed the damage caused to the vehicle at  Rs.90,000/-,  whereas
the appellant had  preferred  a  claim  for  a  sum  of  Rs.1,64,033/-  with
supporting bills. In addition to  above,  the  respondent-Company  appointed
M/s Innovation Auto Risk Claim Manager for  the  purpose  of  investigation.
According  to  the  report  of  the  investigator,  five   passengers   were
travelling in the goods-carrying vehicle, though  the  seating  capacity  of
the vehicle as per the registration certificate was only 1+1. On  the  basis
of findings of the said report, the  respondent-Company  vide  letter  dated
26.07.2010 rejected the claim of the appellant for the reason that the  loss
did not fall within the scope and purview of the insurance policy.



Aggrieved of the letter of rejection of the claim of the  appellant  by  the
respondent-Company,  he  filed  Complaint  No.517  of   2010   against   the
respondent-Company dated 17.09.2010 before the  District  Consumer  Disputes
Redressal Forum, Sonepat (hereinafter referred to as the  “District  Forum”)
under Section 12 of the Consumer Protection  Act,  1986  for  the  claim  of
Rs.1,64,033/- towards the repair of his  vehicle  on  the  ground  that  the
rejection of the claim amounts to deficiency in service on the part  of  the
respondent-Company.



 The respondent-Company  filed  a  detailed  written  statement  before  the
District Forum disputing the claim of the appellant. It took the  plea  that
the complainant had violated the terms and  conditions  of  the  policy,  as
five passengers were travelling in the goods-carrying vehicle  at  the  time
of accident, whereas the permitted seating capacity of the motor vehicle  of
the appellant was only 1+1.



The District Forum on the basis of the pleadings  of  the  parties  and  the
materials on record considered the judgment of the  National  Commission  in
the case of National Insurance  Co.  Ltd.  v.  Pravinbhai  D.  Prajapati[1],
wherein it was held that if the number of persons travelling in the  vehicle
at the time of the  accident  did  not  have  a  bearing  on  the  cause  of
accident, then the mere factum of  the  presence  of  more  persons  in  the
vehicle  would  not  disentitle   the   insured   claimant   from   claiming
compensation under the policy towards the  repair  charges  of  the  vehicle
paid  by  the  appellant.  The  District  Forum  accordingly  directed   the
respondent-Company to settle the claim  of  the  appellant  on  non-standard
basis upto 75% of the amount spent for  effecting  repairs  to  the  damaged
vehicle after taking into consideration the claim amount  of  Rs.1,64,033/-.
The District Forum further directed the  respondent-Company  to  settle  the
amount to be paid to the appellant along with interest at  the  rate  of  9%
per annum from the date of lodging of the claim by the  appellant  with  the
respondent-Company. The  respondent-Company  was  further  directed  to  pay
Rs.2,000/-  for  rendering  deficient  service,  causing  mental  agony  and
harassment and towards litigation expenses incurred by the appellant.



Aggrieved of the  order  of  the  District  Forum,  the  respondent  Company
preferred an appeal before the State Commission urging various grounds.  The
State Commission placed reliance upon the judgment  of  this  Court  in  the
case of Suraj Mal Ram Niwas Oil Mills (P) Ltd.  v.  United  India  Insurance
Co. Ltd. & Anr.[2], wherein it was held as under:



“Before embarking on an examination of the correctness  of  the  grounds  of
repudiation of the policy, it would be apposite to examine the nature  of  a
contract of insurance. It is trite that in  a  contract  of  insurance,  the
rights and obligations are governed by  the  terms  of  the  said  contract.
Therefore, the terms of a contract of insurance  law  have  to  be  strictly
construed and no exception can be made on the ground of equity.



Thus, it needs little emphasis that in construing the terms  of  a  contract
of insurance important, and it is not open for the court to add,  delete  or
substitute any words. It is also well settled that since  upon  issuance  of
an insurance policy, the insurer undertakes to indemnify the  loss  suffered
by the insured on account of risk covered by the policy, its terms  have  to
be strictly construed to determine the extent of liability of  the  insurer.
Therefore, the endeavour of the court should  always  be  to  interpret  the
words in which the contract is expressed by the parties.”



The State Commission applied the observation made in the above said case  by
this Court to the case  on  hand  and  held  that  the  District  Forum  has
committed a serious error in allowing the complaint filed by  the  appellant
herein against the respondent-Company. The  State  Commission  accepted  the
appeal filed by the respondent-Company and dismissed the  complaint  of  the
appellant, vide its order dated 29.02.2012 by  setting  aside  the  judgment
and order of the District Forum.



The said judgment passed by the  State  Commission  was  challenged  by  the
appellant before the National Commission by way of filing Revision  Petition
No.2032 of 2012 under Section 21(b) of the  Consumer  Protection  Act,  1986
questioning the correctness of the same by urging various tenable grounds.



After examining the material evidence on  record,  the  National  Commission
has arrived at the conclusion and held that the factum  of  the  vehicle  in
question carrying six passengers at  the  time  of  the  occurrence  of  the
accident was an undisputed fact. Thus, there had been  a  violation  of  the
terms and conditions of the insurance policy covered to the vehicle  by  the
appellant, as he had allowed six passengers to travel in  the  vehicle  when
the permitted load was only 1+1. The National Commission  upheld  the  order
passed by the State Commission and dismissed the Revision Petition filed  by
the appellant by recording its reasons. The Review  Petition  filed  against
the  dismissal   of   the   Revision   Petition   by   the   appellant   was
also dismissed without considering  the  grounds  urged  for  reviewing  its
order.



The present appeals have been filed challenging the  orders  passed  by  the
National Commission in dismissing the Revision and Review petitions. In  our
considered  view,  the  concurrent  findings  recorded   by   the   National
Commission in the impugned judgment and order are erroneous in law  for  the
following reasons.



It is an admitted fact that the accident of the  vehicle  of  the  appellant
was caused on account  of  rash  and  negligent  driving  of  the  offending
vehicle bearing registration no. UP-75-J9860. An FIR No. 66  of  2010  dated
11.02.2010 was registered under Sections 279, 337, 338,  304-A  and  427  of
the Indian Penal Code against  the  driver  of  the  said  vehicle  for  the
offences referred to supra. The vehicle of the appellant was  badly  damaged
in the accident and it is an undisputed fact that  the  report  of  Surveyor
assessed the loss at Rs.90,000/-, but the  actual  amount  incurred  by  the
appellant on the repair of his vehicle was  Rs.1,64,033/-.  The  said  claim
was arbitrarily rejected by the respondent-Company on the  ground  that  the
damage caused to the vehicle did not fall within the scope  and  purview  of
the insurance policy, as there was a contravention of terms  and  conditions
of the policy of the vehicle.



The National Commission upheld the order of dismissal of  the  complaint  of
the appellant passed  by  the  State  Commission.  The  National  Commission
however, did not consider the judgment of this Court in  the  case  of  B.V.
Nagaraju v. Oriental Insurance Co. Ltd  Divisional  Officer,  Hassan[3].  In
that case, the insurance company had taken the defence that the  vehicle  in
question was carrying more passengers than the permitted capacity  in  terms
of the policy at the time of the accident. The said plea  of  the  insurance
company was rejected. This Court held that the mere factum of carrying  more
passengers than  the  permitted  seating  capacity  in  the  goods  carrying
vehicle by the insured  does not amount  to  a  fundamental  breach  of  the
terms and conditions of the policy so as to allow the insurer to eschew  its
liability towards the damage caused to the vehicle. This Court in  the  said
case has held as under:-

“It is plain from the  terms  of  the  Insurance  Policy  that  the  insured
vehicle was entitled to carry six workmen, excluding the  driver.  If  those
six workmen when  travelling  in  the  vehicle,  are  assumed  not  to  have
increased risk from the point of view of the Insurance Company on  occurring
of an accident, how could those added persons be said  to  have  contributed
to the causing of it is the pose, keeping apart the load  it  was  carrying.
In the present case the driver of the vehicle was not  responsible  for  the
accident. Merely by lifting a person or two, or even three,  by  the  driver
or the cleaner of the vehicle, without the knowledge of  the  owner,  cannot
be said to be such a fundamental  breach  that  the  owner  should,  in  all
events, be denied indemnification. The misuse of the  vehicle  was  somewhat
irregular though, but not so fundamental in nature so as to put  an  end  to
the contract, unless some factors existed which by themselves, had  gone  to
contribute to the causing of the accident.”
                         (emphasis laid by this Court)

Further, in the case of National Insurance Company Ltd. v.  Swaran  Singh  &
Ors[4]. a three judge bench of this Court has held as under:-



”49. Such a breach on the part of the insured must  be  established  by  the
insurer to show that not only the insured used or caused or permitted to  be
used the vehicle in breach of the Act but also that the damage  he  suffered
flowed from the breach.



52. In Narvinva’s case (supra) a Division  Bench  of  this  Court  observed:
“The insurance company complains of breach  of  a  term  of  contract  which
would permit it to disown its liability under the contract of insurance.  If
a breach of a term of contract permits a party to  the  contract  complaints
of breach to prove that the breach has been committed by the other party  to
the contract. The test in such a situation would be who  would  fail  if  no
evidence is led.



69. The proposition of law is no longer res- integra  that  the  person  who
alleges breach  must  prove  the  same.  The  insurance  company  is,  thus,
required to establish the said breach by cogent evident. In  the  event  the
insurance company fails to prove that there has been  breach  of  conditions
of policy on the part of  the  insured,  the  insurance  company  cannot  be
absolved of its liability.”

                                               (emphasis laid by this Court)



The judgment  in  the  case  of  Swaran  Singh  (supra)  has  been  followed
subsequently in the  case  of  Oriental  Insurance  Company  Ltd.  v.  Meena
Variyal[5], wherein this Court held as under:-



“We shall now examine the decision in Swaran Singh on which practically  the
whole of the arguments on behalf of the claimants were rested. On  examining
the facts, it is found that, that was a case which related to a claim  by  a
third party. In claims by a third party, there cannot  be  much  doubt  that
once the liability of the owner is found, the insurance  company  is  liable
to indemnify the owner, subject of  course,  to  any  defence  that  may  be
available to it  under  Section  149(2)  of  the  Act.  In  case  where  the
liability is satisfied by the insurance company in the  first  instance,  it
may have recourse to the owner in respect  of  a  claim  available  in  that
behalf, it may have recourse to the owner in respect of  a  claim  available
that behalf. Swaran Singh was a case where the insurance  company  raised  a
defence that the owner had permitted the vehicle to be driven  by  a  driver
who really had no licence and the driving licence  produced  by  him  was  a
fake one. There Lordships discussed the position and held ultimately that  a
defence under Section 149(2)(a)(ii) of the Act was available to  an  insurer
when a claim is filed either under Section 163-A or  under  Section  166  of
the Act. The breach of a policy condition has to  be  proved  to  have  been
committed by the  insured  for  avoiding  liability  by  the  insurer.  Mere
absence  of  or  production  of  fake  or   invalid   driving   licence   or
disqualification of the driver for driving at the relevant time, are not  in
themselves defences available to the insurer against either the  insured  or
the third party. The insurance company to avoid  liability,  must  not  only
establish the available defence raised in the proceeding concerned but  must
also establish breach on the part of the owner of the vehicle for which  the
burden of proof would rest  with  the  insurance  company.  Whether  such  a
burden had been discharged, would depend upon the facts breach on  the  part
of the insured concerning a policy  condition,  the  insurer  would  not  be
allowed to avoid its liability towards the insured unless  the  said  breach
of condition is so fundamental as to be found to  have  contributed  to  the
cause of the accident.”
                (emphasis laid by this Court)

It becomes very clear from a perusal of the  above  mentioned  case  law  of
this Court that the insurance company, in order to avoid liability must  not
only establish the defence claimed in the  proceeding  concerned,  but  also
establish breach on the part of the owner/insured of the vehicle  for  which
the burden of proof would rest with the insurance company.  In  the  instant
case, the respondent-Company has not produced  any  evidence  on  record  to
prove  that  the  accident  occurred  on  account  of  the  overloading   of
passengers in the goods carrying vehicle. Further, as has been held  in  the
case of B.V. Nagaraju (supra) that for the insurer to avoid  his  liability,
the breach of the policy must be so fundamental in  nature  that  it  brings
the contract to an end. In the instant  case,  it  is  undisputed  that  the
accident was infact caused on account of the rash and negligent  driving  of
the offending vehicle by its driver, against whom a criminal case  vide  FIR
no. 66 of 2010 was registered for the offences referred to supra  under  the
provisions of the IPC. These facts have not been  taken  into  consideration
by either the State  Commission  or  National  Commission  while  exercising
their jurisdiction and setting  aside  the  order  of  the  District  Forum.
Therefore,  the  judgment  and  order  of  the  National  Commission   dated
26.04.2013 passed in the Revision Petition No. 2032 of 2012 is liable to  be
set aside, as the said findings recorded in the judgment  are  erroneous  in
law.



Accordingly, we allow these appeals and restore the judgment  and  order  of
District Forum. Further, we award a sum of Rs.25,000/- towards the  cost  of
the litigation as the respondent-Company  has  unnecessarily  litigated  the
matter up to this Court despite the clear pronouncement of law laid down  by
this Court on the question  with  regard  to  the  violation  of  terms  and
conditions of the policy and burden of proof is on the insurer to prove  the
fact of such alleged breach of terms and conditions by the insured.





Since we have restored the judgment and order of District Forum,  we  direct
the respondent-Company to pay the amount awarded by the District Forum  with
interest and the cost which we have awarded in these proceedings within  six
weeks from the date of the receipt of the copy of this judgment.



…………………………………………CJI.                       [T.S. THAKUR]



     ………………………………………………J.
      [V. GOPALA GOWDA]
New Delhi,
January 7, 2016


ITEM NO.1B-For Judgment     COURT NO.10          SECTION XVII

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

Civil Appeal  No(s).49-50/2016 arising from SLP(C) Nos.  37534-37535/2013

LAKHMI CHAND                                       Appellant(s)

                                VERSUS

RELIANCE GENERAL INSURANCE                       Respondent(s)

Date : 07/01/2016 These appeals were called for  pronouncement  of  JUDGMENT
today.

For Appellant(s)
                     Mr. Munawwar Naseem,Adv.

For Respondent(s)
                     Mr. Garvesh Kabra,Adv.


      Hon'ble Mr. Justice V.Gopala Gowda  pronounced  the  judgment  of  the
Bench comprising Hon'ble the Chief Justice and His Lordship.
      Leave granted.
      The  appeals  are  allowed  in  terms  of  the  signed  Non-Reportable
Judgment.

        (VINOD KUMAR)                    (MALA KUMARI SHARMA)
         COURT MASTER                        COURT MASTER
         (Signed Non-Reportable judgment is placed on the file)


-----------------------
[1]   [2] IV 2010 CPJ 315 (NC)
[3]   [4] (2010) 10 SCC 567
[5]   [6] (1996) 4 SCC 647
[7]   [8] (2004) 3 SCC 297
[9]   [10] (2007) 5 SCC 428

The first FIR deals with offences punishable under Sections 3,4,5,6 and 7 of the Act, whereas, the second FIR deals with the offences punishable under Sections 419 and 420 of IPC which are alleged to have committed during the course of investigation of the case in the first FIR.= It is well settled principle of law that there can be no second FIR in the event of any further information being received by the investigating agency in respect of offence or the same occurrence or incident giving rise to one or more offences for which chargesheet has already been filed by the investigating agency. The recourse available with the investigating agency in the said situation is to conduct further investigation normally with the leave of the court as provided under sub-Section (8) to Section 173 of Cr.P.C. The reliance is placed on the decision of this court rendered in T.T.Antony v. State of Kerala[2], relevant paras of which read thus: “19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 CrPC. xx xx xx 21. ...The 1973 CrPC specifically provides for further investigation after forwarding of report under sub-section (2) of Section 173 CrPC and forwarding of further report or reports to the Magistrate concerned under Section 173(8) CrPC. It follows that if the gravamen of the charges in the two FIRs — the first and the second — is in truth and substance the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 CrPC will be irregular and the court cannot take cognizance of the same.” (emphasis supplied) However, this principle of law is not applicable to the fact situation in the instant case as the substance of the allegations in the said two FIRs is different. The first FIR deals with offences punishable under Sections 3,4,5,6 and 7 of the Act, whereas, the second FIR deals with the offences punishable under Sections 419 and 420 of IPC which are alleged to have committed during the course of investigation of the case in the first FIR. This Court is of the view that the alleged offences under the second FIR in substance are distinct from the offences under the first FIR and they cannot, in any case, said to be in the form of the part of same transaction with the alleged offences under the first FIR. Therefore, no question of further investigation could be made by the investigating agency on the alleged offences arisen as the term “further investigation” occurred under sub-Section (8) to Section 173 of Cr.P.C. connotes the investigation of the case in continuation of the earlier investigation with respect to which the chargesheet has already been filed. The reliance is placed on the judgment of this Court in the case of Rama Chaudhary v. State of Bihar[3], the relevant para 17 reads thus: “17. From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of the police report under sub-section (2) on completion of the investigation, the police has a right to “further” investigation under sub-section (8) of Section 173 but not “fresh investigation” or “reinvestigation”. The meaning of “further” is additional, more, or supplemental. “Further” investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether.” (emphasis supplied) Therefore, for the above said reasons the submissions made on behalf of both the appellants are not tenable in law and the same cannot be accepted by this Court. Further, the case of Amitbhai Anilchandra Shah (supra) upon which strong reliance is placed by the learned counsel for both the appellants is also totally inapplicable to the fact situation and it does not support the case of both the appellants. For the reasons stated supra, this Court does not find any reason either to interfere with the impugned order passed by the High Court or with the order of dismissal dated 04.12.2013 passed by the Judicial Magistrate first class, Kishanganj, on the application made under Section 239 of Cr.P.C. filed by the appellants. Accordingly, this appeal being devoid of merit is dismissed. The order dated 09.02.2015 granting stay shall be vacated.

NON-REPORTABLE


               IN THE SUPREME COURT OF INDIA
                    CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO. 15 OF 2016
            (Arising out of SLP(CRL) No.975 of 2015)


AWADESH KUMAR JHA @ AKHILESH
KUMAR JHA & ANR.                   …APPELLANTS

                            Versus


THE STATE OF BIHAR                     … RESPONDENT




                       J U D G M E N T



V. GOPALA GOWDA, J.


      Leave granted.


This criminal appeal is directed against the  impugned  judgment  and  order
dated 14.10.2014 passed by the High Court of Judicature  at  Patna  in  Crl.
Misc. No.13700 of  2014  whereby  it  has  refused  to  interfere  with  the
impugned  orders  therein.  Both  the  appellants  filed  application  under
Section 239 of Code of Criminal Procedure, 1973 (for  short  the  “Cr.P.C.”)
before the  learned  Judicial  Magistrate  of  first  class,  Kishanganj  in
relation to FIR No. 183 of 2008. The same was dismissed  on  the  ground  of
being devoid of merit vide order dated 04.12.2013. The  Court  of  Sessions,
Purnea, in revision  petition,  has  upheld  the  decision  of  the  learned
Judicial Magistrate of first class which has  further  upheld  by  the  High
Court. The correctness of the  said  order  is  challenged  in  this  appeal
urging various grounds.

Brief facts of the case are stated hereunder to appreciate the  rival  legal
contentions urged on behalf of the parties:-

On 04.05.2008  FIR  no.  111  of  2008  (for  short  the  “first  FIR”)  was
registered at Kishanganj police station against both  the  appellants  along
with other persons for the offences punishable under Sections 3,4,5,6 and  7
of Immoral Traffic (Prevention) Act, 1956 (in short “the Act”) on a  written
complaint made by Sub Divisional Police Officer  Ravish  Kumar,  Kishanganj,
Bihar. The allegation made therein was that on  the  telephonic  information
received from SDPO Phulwari sharif, Patna regarding  the  confinement  of  a
minor girl Rubana Khatun,  aged  about  16  years,  in  red  light  area  of
Khagaria for the purpose of carrying out the flesh trade, the raiding  party
of police authorities conducted a raid in the house of Sisa Khalifa. In  the
course of such raid, the raiding party found six  couples  in  objectionable
position in six different rooms. Along  with  others  the  appellant  no.  1
(Akhilesh Kumar Jha) and appellant no.2 (Ajit Prasad) were also arrested  in
the course of the raid and they were booked for  offences  punishable  under
Sections 3,4,5,6 and 7 of the Act.

The first FIR was investigated by the investigating officer and  the  report
under Section 173 of Cr.P.C. was filed before the Chief Judicial  Magistrate
(for short “CJM”) for taking cognizance  of  the  offences  alleged  against
them. The learned CJM, Kishanganj took cognizance of  the  alleged  offences
vide his order dated 06.08.2008.

In the meantime, both the appellants moved applications for grant  of  bail.
It is alleged that in those bail applications both the appellants  furnished
wrong information regarding their names, father’s name and address.

On the written complaint of  Shri  Arvind  Kumar  Singh,  the  Inspector  of
Police, Kishanganj police station another FIR No. 183 of  2008  (hereinafter
referred to as the “second FIR”) dated  03.07.2008  was  registered  against
both the appellants for the offences punishable under Sections 419  and  420
of Indian Penal Code, 1860 (for short “IPC”).  The allegations made  therein
were  that  both  the  appellants  furnished  wrong   information   to   the
investigating officer regarding  their  names,  father’s  name  and  address
during the course of investigation made on the first FIR  and  also  in  the
bail applications filed by them  before the learned CJM in the case  arising
out of first FIR.

The second FIR was investigated by the investigating officer  and  a  report
under Section 173 of Cr.P.C. was filed before  CJM,  Kishanganj  for  taking
cognizance of the offences alleged against the appellants. The  learned  CJM
took cognizance of the alleged offences vide order dated 11.09.2008.

The appellants filed  revision  petitions  before  the  Additional  Sessions
Judge, Purnea against  the  first  order  of  cognizance  dated  06.08.2008,
passed by CJM, Kishanganj. The learned  Additional  Sessions  Judge,  Purnea
vide order dated 18.12.2010 has set  aside  the  said  order  of  cognizance
passed by CJM, Kishanganj holding that no  offence  under  Sections  3,4,5,6
and 7 of the Act as alleged in  the  first  FIR  is  made  out  against  the
appellants.

Thereafter, the  appellants  filed  an  application  under  Section  239  of
Cr.P.C. before Judicial Magistrate of first class, Kishanganj seeking  their
discharge from the offences alleged in the second FIR. The learned  Judicial
Magistrate of first class, Kishanganj after a perusal of material on  record
found no merit in the application under Section  239  of  Cr.P.C.  filed  by
them and accordingly dismissed the same vide his order dated 04.12.2013.

Being aggrieved  of  the  order  dated  04.12.2013  passed  by  the  learned
Judicial Magistrate of first class, the appellants approached the  Court  of
Sessions, Purnea by filing the Criminal Revision Petition No.  12  of  2014.
The learned Sessions Judge, Purnea concurred with the findings  recorded  in
the impugned order passed  by  the  learned  Judicial  Magistrate  of  first
class, Kishanganj and dismissed the said revision petition vide order  dated
03.02.2014.

The appellants being aggrieved of  the  order  dated  03.02.2014  passed  by
learned Sessions Judge, Purnea filed Crl. Misc. No.  13700  of  2014  before
the High Court of Judicature at Patna for quashing of the said order.

The learned Single Judge of  the  High  Court  of  Patna  vide  order  dated
14.10.2014  dismissed the said petition holding  that  at  present  case  is
surviving against the appellants which has  arisen out  of  the  second  FIR
and the criminal proceedings arising out of first FIR has already  been  set
aside.  The learned Single  Judge  did  not  find  any  merit  in  the  said
petition filed before her and she accordingly  dismissed  the  same  with  a
direction to the Trial Court to conclude  the  trial  expeditiously.  Hence,
this appeal with request to set aside the same  and  allow  the  application
made under Section 239 of Cr.P.C. by the appellants seeking their  discharge
of the offences alleged in the second FIR.

Mr. Akhilesh Kumar Pandey, the learned counsel on behalf of  the  appellants
contended that the High  Court  has  failed  to  appreciate  the  fact  that
offences under the second FIR were allegedly committed during the course  of
investigation made on the first  FIR,  thus,  it  forms  the  part  of  same
transaction with the  offences  in  respect  of  which  the  first  FIR  was
registered. Therefore, instead of institution of the second FIR,  a  further
investigation as provided under sub-Section (8) to Section  173  of  Cr.P.C.
should have been done in respect of the offences alleged  under  second  FIR
with the leave  of  the  court.  But,  no  such  further  investigation  was
conducted by the investigating officer in  respect  of  the  said  offences.
Thus, it is urged that the registration of second FIR  is  wholly  untenable
in law and therefore liable to be quashed.

It was further contended by him that the reasons given by the High Court  in
the impugned order in dismissing the Crl. Misc. Petition  holding  that  the
proceedings arising out of first FIR has  already  been  set  aside  and  at
present one more case is surviving against the  appellants  arising  out  of
second FIR is not tenable in law, for the reason  that  the  offences  under
the second FIR are of the same transaction with the first FIR as  they  were
allegedly committed in the course of investigation made on  the  first  FIR.
Thus, there was no need for the institution of second FIR against  them.  He
further submitted that the registration of second FIR is  illegal  and  void
ab-initio in law as the same  is  in  violation  of  Article  20(2)  of  the
Constitution of India and also  contrary  to  Section  300  of  Cr.P.C.  and
Section 26 of the General Clauses Act, 1897.

 He further vehemently contended that  the  High  Court  has  erred  in  not
appreciating the law regarding the impermissibility of registration  of  the
second FIR against the appellants in respect  of  an  offence  or  different
offences committed in the course  of  same  transaction.  He  placed  strong
reliance upon paras 37, 38 and 58.3 of the judgment of  this  Court  in  the
case of Amitbhai Anilchandra Shah  v.  Central  Bureau  of  Investigation  &
Anr.[1], which relevant paragraphs are extracted in  the  reasoning  portion
of this judgment.

He further submitted that the  High  Court  has  failed  to  appreciate  the
important aspect of the case that the  second  FIR  registered  against  the
appellants for the  offences  alleged  to  have  committed  forms  the  same
transaction and therefore, registering another case against  the  appellants
is not permissible in law as laid down by this Court in  the  case  referred
to supra and the same  is  against  the  principle  of  double  jeopardy  as
enshrined in Article 20(2) of the Constitution of India. Thus, the  impugned
order passed by the High Court is vitiated in law and the same is liable  to
be set aside by this Court in exercise of its appellate jurisdiction.

It was further contended by him that the High Court has not appreciated  the
fact  that  even  on  merits  both  the  appellants  never  furnished  wrong
information to the investigation  officer  about  their  identity.  In  this
regard, he had submitted that during the  course  of  investigation  on  the
first FIR the investigation officer, after verification found  the  name  of
appellant no.1  to  be  Awadesh  Kumar  Jha  and  not  Akhilesh  Kumar  Jha.
Similarly, with regard to appellant no.2, his father’s name was  also  found
to be Late Ramanand, Prasad. The learned counsel urged that  appellant  no.1
Awadesh Kumar Jha is also known as Akhilesh Kumar Jha.  The  same  fact  has
also been certified by  Mukhiya,  Gram  Panchayat  Sonma,  Purnea  district.
Further, the father’s name of appellant no.2, Ajit Prasad is  Late  Ramendra
Prasad, who was also known as Late Ramananda  Prasad.  Therefore,  both  the
appellants cannot be said to have furnished any  wrong  information  to  the
investigation officer regarding their identity  as  alleged  in  the  second
FIR.

 It was further  contended  by  him  that  the  High  Court  has  failed  to
appreciate  another  important  fact  that  both  the  appellants  were  not
instrumental in creating any dubious document for the  purpose  of  cheating
the police as alleged in the second FIR. The first FIR was recorded  by  the
police officer and thus, both the appellants should not be held  responsible
for wrong information written by the Police in the first FIR.

The learned counsel for the appellants prayed for allowing this  appeal  and
requested this Court to set aside the impugned  order  passed  by  the  High
Court and requested for discharge of both the  appellants  for  the  alleged
offences under the second FIR.

 Per contra, Mr. Rudreshwar Singh, the learned  counsel  on  behalf  of  the
respondent-State sought to justify the impugned order  passed  by  the  High
Court and the order passed by  the  learned  Judicial  Magistrate  of  first
class dismissing the application under Section 239 of Cr.P.C. filed  by  the
appellants for the alleged offences under second FIR on the ground that  the
same  are  well  founded  and  are  not  vitiated  in  law.  Therefore,   no
interference with the same by this Court is  required  in  exercise  of  its
appellate jurisdiction.

We have carefully examined the rival contentions urged  on  behalf  of  both
the parties and  the  decision  of  this  Court  in  the  case  of  Amitbhai
Anilchandra Shah case (supra) upon which the strong reliance  is  placed  by
the learned counsel for the appellants. The relevant paras of the  abovesaid
case cited by him read thus :-

“37.  This  Court  has  consistently  laid  down  the  law  on   the   issue
interpreting the Code, that a  second  FIR  in  respect  of  an  offence  or
different offences committed in the course of the same  transaction  is  not
only impermissible but it violates Article 21 of the Constitution.  In  T.T.
Antony, this Court has categorically held that registration  of  second  FIR
(which is not a cross-case) is violative of Article 21 of the  Constitution.
The following conclusion in paras  19,  20  and  27  of  that  judgment  are
relevant which read as under: (SCC pp. 196-97 & 200)
“19. The scheme of CrPC is that an officer in charge  of  a  police  station
has to commence investigation as provided in Section 156 or 157 CrPC on  the
basis of entry of the first information report, on coming  to  know  of  the
commission of a cognizable offence. On completion of  investigation  and  on
the basis of the evidence  collected,  he  has  to  form  an  opinion  under
Section 169 or 170 CrPC, as the case may be, and forward his report  to  the
Magistrate concerned under Section 173(2) CrPC. However, even  after  filing
such a report, if  he  comes  into  possession  of  further  information  or
material, he need not register a fresh FIR; he is empowered to make  further
investigation, normally with the  leave  of  the  court,  and  where  during
further investigation he collects further evidence, oral or documentary,  he
is obliged to forward the same with one or more  further  reports;  this  is
the import of sub-section (8) of Section 173 CrPC.

20. From the above discussion it  follows  that  under  the  scheme  of  the
provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173  CrPC  only
the earliest or the first information in  regard  to  the  commission  of  a
cognizable offence satisfies the requirements  of  Section  154  CrPC.  Thus
there can  be  no  second  FIR  and  consequently  there  can  be  no  fresh
investigation on receipt of every subsequent information in respect  of  the
same cognizable offence or the same occurrence or incident  giving  rise  to
one  or  more  cognizable  offences.  On  receipt  of  information  about  a
cognizable offence or an incident giving rise to  a  cognizable  offence  or
offences and on entering the FIR in the station house diary, the officer  in
charge of a police station has to  investigate  not  merely  the  cognizable
offence reported in the FIR but also other connected offences found to  have
been committed in the course of the same transaction or the same  occurrence
and file one or more reports as provided in Section 173 CrPC.

  xx         xx          xx

27. A just balance between the fundamental  rights  of  the  citizens  under
Articles 19 and 21 of the  Constitution  and  the  expansive  power  of  the
police to investigate a cognizable offence has to be struck  by  the  court.
There cannot be any controversy that sub-section (8)  of  Section  173  CrPC
empowers the police to make further investigation, obtain  further  evidence
(both oral and documentary) and forward a further report or reports  to  the
Magistrate. In Narang case it  was,  however,  observed  that  it  would  be
appropriate to conduct further investigation  with  the  permission  of  the
court. However,  the  sweeping  power  of  investigation  does  not  warrant
subjecting a citizen each time to  fresh  investigation  by  the  police  in
respect of the  same  incident,  giving  rise  to  one  or  more  cognizable
offences, consequent upon filing of successive FIRs whether before or  after
filing the final report under Section  173(2)  CrPC.  It  would  clearly  be
beyond the purview of Sections 154 and 156 CrPC, nay, a  case  of  abuse  of
the statutory power of investigation in a given case. In our view a case  of
fresh investigation based on the second or  successive  FIRs,  not  being  a
counter-case, filed in connection with  the  same  or  connected  cognizable
offence  alleged  to  have  been  committed  in  the  course  of  the   same
transaction and in respect  of  which  pursuant  to  the  first  FIR  either
investigation is under way or final report under  Section  173(2)  has  been
forwarded to the Magistrate, may be a fit case for exercise of  power  under
Section 482 CrPC or under Articles 226/227 of the Constitution.”

The abovereferred declaration of law by this Court has  never  been  diluted
in  any  subsequent  judicial  pronouncements   even   while   carving   out
exceptions.

38. Mr Raval, learned ASG, by referring T.T. Antony submitted that the  said
principles are not applicable and relevant to the  facts  and  circumstances
of this case as the said judgment laid down the ratio that there  cannot  be
two FIRs relating to  the  same  offence  or  occurrence.  The  learned  ASG
further pointed out that  in  the  present  case,  there  are  two  distinct
incidents/occurrences, inasmuch as one being the conspiracy relating to  the
murder of Sohrabuddin with the help of  Tulsiram  Prajapati  and  the  other
being the conspiracy to murder Tulsiram Prajapati — a potential  witness  to
the earlier conspiracy to murder Sohrabuddin. We are unable  to  accept  the
claim of the learned ASG. As a matter of fact, the aforesaid proposition  of
law making registration of fresh FIR impermissible and violative of  Article
21 of the  Constitution  is  reiterated  and  reaffirmed  in  the  following
subsequent decisions of this Court: (1) Upkar  Singh  v.  Ved  Prakash,  (2)
Babubhai v. State of Gujarat, (3) Chirra Shivraj v. State of A.P.,  and  (4)
C. Muniappan v. State of T.N. In  C.  Muniappan  this  Court  explained  the
“consequence test” i.e. if an offence forming part of the second FIR  arises
as a consequence of the offence alleged  in  the  first  FIR  then  offences
covered by both the FIRs are the same and, accordingly, the second FIR  will
be impermissible in law. In other words, the offences covered  in  both  the
FIRs shall have to be treated as a part of the first FIR.

  xx           xx             xx

58.3. Even after filing of such a report, if he  comes  into  possession  of
further information or material, there is no need to register a  fresh  FIR,
he is empowered to make further investigation normally  with  the  leave  of
the court and  where  during  further  investigation,  he  collects  further
evidence, oral or documentary, he is obliged to forward the  same  with  one
or more further reports which is evident from  sub-section  (8)  of  Section
173 of the Code. Under the scheme of the provisions of  Sections  154,  155,
156, 157, 162, 169, 170 and 173 of the Code, only the earliest or the  first
information in regard to the commission of a  cognizable  offence  satisfies
the requirements of Section 154 of the Code. Thus, there can  be  no  second
FIR and, consequently, there can be no fresh  investigation  on  receipt  of
every subsequent information in respect of the same  cognizable  offence  or
the same occurrence or incident  giving  rise  to  one  or  more  cognizable
offences.”

The second FIR was registered against the appellants on a written  complaint
of Arvind Kumar Singh, Inspector of Police at Kishanganj police station.  It
was found by the investigating officer during the  course  of  investigation
in the first FIR that real name of the appellant no.1 was Awadesh Kumar  Jha
s/o Late Kaladhar Jha r/o Gram Akbarpur, District Purnea and  was  found  to
be working as Development  Officer  at  New  India  Assurance  Company  Ltd.
Branch Purnia, contrary to the same the personal information  was  furnished
by him at  the  time  of  investigation  of  the  case  on  the  first  FIR.
Similarly, with regard to the appellant no.2 his father’s name was found  to
be Late Ramendra Prasad and not Late Ramanand. His actual address was  found
to be Ranipatti P.S. Kumarkhand, District Madhepura and he was found  to  be
working as surveyor and investigator of all branches  of  General  Assurance
Company. It is also alleged in the second FIR that both the  appellants  had
not  disclosed  their  correct  names,  father’s  name,  their  address  and
occupation in the bail applications filed by them in  respect  of  the  case
arising out of first FIR before the Additional Sessions Judge.

 From a bare perusal of second FIR, it is abundantly  clear  that  both  the
appellants have furnished wrong  information  to  the  police  as  to  their
names, father’s name and address during the course of investigation made  on
the first FIR. This Court is of the view that the offences alleged  to  have
committed by them are mentioned in second FIR, which offences  are  distinct
offences committed by both the appellants and the same  have  no  connection
with the offences for which the  first  FIR  was  registered  against  them.
Therefore, for the reason stated supra, the contention urged by the  learned
counsel on behalf of both the appellants  that  instead  of  institution  of
second FIR for the said offences, a further investigation as provided  under
sub-Section (8) to Section 173 of Cr.P.C.  should  have  been  done  by  the
investigation officer  on  the  ground  of  they  being  the  part  of  same
transaction with offences registered under first FIR is wholly untenable  in
law and liable to be rejected.

Further, the decision of this Court in  the  case  of  Amitbhai  Anilchandra
Shah (supra) upon which strong reliance is placed by the learned counsel  on
behalf of both the appellants does not render any assistance to them in  the
case at hand. This Court in the  said  case  after  examining  the  relevant
provisions of Cr.P.C. has categorically held thus:-
“58.2. The various provisions of the  Code  of  Criminal  Procedure  clearly
show  that  an  officer-in-charge  of  a  police  station  has  to  commence
investigation as provided in Section 156 or 157 of the Code on the basis  of
entry of the first information report, on coming to know of  the  commission
of cognizable offence. On completion of investigation and on  the  basis  of
the evidence collected, the investigating officer has  to  form  an  opinion
under Section 169 or  170  of  the  Code  and  forward  his  report  to  the
Magistrate concerned under Section 173(2) of the Code.

58.3. Even after filing of such a report, if he  comes  into  possession  of
further information or material, there is no need to register a  fresh  FIR,
he is empowered to make further investigation normally  with  the  leave  of
the court and  where  during  further  investigation,  he  collects  further
evidence, oral or documentary, he is obliged to forward the  same  with  one
or more further reports which is evident from  sub-section  (8)  of  Section
173 of the Code. Under the scheme of the provisions of  Sections  154,  155,
156, 157, 162, 169, 170 and 173 of the Code, only the earliest or the  first
information in regard to the commission of a  cognizable  offence  satisfies
the requirements of Section 154 of the Code. Thus, there can  be  no  second
FIR and, consequently, there can be no fresh  investigation  on  receipt  of
every subsequent information in respect of the same  cognizable  offence  or
the same occurrence or incident  giving  rise  to  one  or  more  cognizable
offences.

    xx              xx               xx

58.5.  The  first  information  report  is  a  report  which   gives   first
information with regard to any  offence.  There  cannot  be  second  FIR  in
respect of the same offence/event because whenever any  further  information
is received by the investigating agency, it is always in furtherance of  the
first FIR.”

       (emphasis supplied by this Court)


It is well settled principle of law that there can be no second FIR  in  the
event of any further information being received by the investigating  agency
in respect of offence or the same occurrence or incident giving rise to  one
or more offences for  which  chargesheet  has  already  been  filed  by  the
investigating agency. The recourse available with the  investigating  agency
in the said situation is to conduct further investigation normally with  the
leave of the court as provided under  sub-Section  (8)  to  Section  173  of
Cr.P.C. The reliance is placed on the decision of  this  court  rendered  in
T.T.Antony v. State of Kerala[2], relevant paras of which read thus:
“19. The scheme of CrPC is that an officer in charge  of  a  police  station
has to commence investigation as provided in Section 156 or 157 CrPC on  the
basis of entry of the first information report, on coming  to  know  of  the
commission of a cognizable offence. On completion of  investigation  and  on
the basis of the evidence  collected,  he  has  to  form  an  opinion  under
Section 169 or 170 CrPC, as the case may be, and forward his report  to  the
Magistrate concerned under Section 173(2) CrPC. However, even  after  filing
such a report, if  he  comes  into  possession  of  further  information  or
material, he need not register a fresh FIR; he is empowered to make  further
investigation, normally with the  leave  of  the  court,  and  where  during
further investigation he collects further evidence, oral or documentary,  he
is obliged to forward the same with one or more  further  reports;  this  is
the import of sub-section (8) of Section 173 CrPC.
   xx           xx              xx
21. ...The 1973 CrPC specifically provides for further  investigation  after
forwarding  of  report  under  sub-section  (2)  of  Section  173  CrPC  and
forwarding of further report or reports to the  Magistrate  concerned  under
Section 173(8) CrPC. It follows that if the gravamen of the charges  in  the
two FIRs — the first and the second — is in truth and  substance  the  same,
registering the second FIR and making  fresh  investigation  and  forwarding
report under Section 173 CrPC will be irregular and the  court  cannot  take
cognizance of the same.”
                    (emphasis supplied)


However, this principle of law is not applicable to the  fact  situation  in
the instant case as the substance of the allegations in the  said  two  FIRs
is different. The first FIR deals with offences  punishable  under  Sections
3,4,5,6 and 7 of the Act, whereas, the second FIR deals  with  the  offences
punishable under Sections 419 and 420 of  IPC  which  are  alleged  to  have
committed during the course of investigation of the case in the  first  FIR.
This Court is of the view that the alleged offences under the second FIR  in
substance are distinct from the  offences  under  the  first  FIR  and  they
cannot, in any case, said to be in the form of the part of same  transaction
with the alleged offences under the first FIR.  Therefore,  no  question  of
further investigation could be made  by  the  investigating  agency  on  the
alleged offences arisen as the term “further investigation”  occurred  under
sub-Section (8) to Section 173 of Cr.P.C. connotes the investigation of  the
case in continuation of the earlier investigation with respect to which  the
 chargesheet has already been filed. The reliance is placed on the  judgment
of this Court in the case of  Rama  Chaudhary  v.  State  of  Bihar[3],  the
relevant para 17 reads thus:
“17. From a plain reading of sub-section (2) and sub-section (8) of  Section
173, it is evident that even after submission of  the  police  report  under
sub-section (2) on completion of the investigation, the police has  a  right
to “further” investigation under sub-section (8)  of  Section  173  but  not
“fresh investigation” or “reinvestigation”.  The  meaning  of  “further”  is
additional, more, or supplemental. “Further”  investigation,  therefore,  is
the continuation of the earlier investigation and not a fresh  investigation
or  reinvestigation  to  be  started  ab  initio  wiping  out  the   earlier
investigation altogether.”
                   (emphasis supplied)
Therefore, for the above said reasons the  submissions  made  on  behalf  of
both the appellants are not tenable in law and the same cannot  be  accepted
by this Court. Further, the case of Amitbhai Anilchandra Shah  (supra)  upon
which strong reliance  is  placed  by  the  learned  counsel  for  both  the
appellants is also totally inapplicable to the fact situation  and  it  does
not support the case of both the appellants.

For the reasons stated supra, this Court does not find any reason either  to
interfere with the impugned order passed by  the  High  Court  or  with  the
order of dismissal dated 04.12.2013 passed by the Judicial Magistrate  first
class, Kishanganj, on the application made  under  Section  239  of  Cr.P.C.
filed by the appellants. Accordingly, this appeal being devoid of  merit  is
dismissed. The order dated 09.02.2015 granting stay shall be vacated.


                    ……………………………………………………CJI.
                    [T.S. THAKUR]



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

New Delhi,
January 7, 2016
ITEM NO.1A-For Judgment    COURT NO.10               SECTION IIA

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

Criminal Appeal  No(s). 15/2016 arising from SLP(Crl.) No.975/2015

AWADESH KUMAR JHA @ AKHILESH KUMAR JHA & ANR.      Appellant(s)

                                VERSUS

THE STATE OF BIHAR                                 Respondent(s)

Date : 07/01/2016 This appeal was called on for pronouncement of JUDGMENT
today.

For Appellant(s)
                     Mr. Akhilesh Kumar Pandey,Adv.

For Respondent(s)
                     Mr. Samir Ali Khan,Adv.


      Hon'ble Mr. Justice V.Gopala Gowda  pronounced  the  judgment  of  the
Bench comprising Hon'ble the Chief Justice and His Lordship.
      Leave granted.
      The  appeal  is  dismissed  in  terms  of  the  signed  Non-Reportable
Judgment.

        (VINOD KUMAR)                    (MALA KUMARI SHARMA)
         COURT MASTER                        COURT MASTER
 (Signed Non-Reportable judgment is placed on the file)

-----------------------
[1]     (2013) 6 SCC 348
[2]     (2001) 6 SCC 181
[3]     (2009) 6 SCC 346

Section 34 IPC is conscious mind of persons participating in the criminal action to bring about a particular result.=whether there was any common intention or not depends upon inference to be drawn from the proved facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted.there was prior concert and that the appellants have acted in furtherance of common intention. As seen from the evidence of PW-6, all the appellants and another co-accused Sk. Kochi were doing illegal business of extorting money from the flat owners. On the date of occurrence, all the appellants and another co-accused Sk. Kochi came together and Sudip Kumar Sen @ Biltu (A-3) started abusing the deceased and Apu Chatterjee (A- 6) exhorted others that if the men of Khoka were not killed, there would be no peace. On such exhortation, Tapas Das and Sankar Das (A-2 and A-4) caught hold of the deceased and Goutam Ghosh and Sk. Kochi (A-1 and A-5) fired at the deceased. Facts and circumstances clearly establish meeting of minds and common intention of the appellants in committing the murder of Saikat Saha and the appellants were rightly convicted under Section 302 read with Section 34 IPC. No ground for interference under Article 136 of the Constitution of India is made out.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO.  17    of 2016
                 (Arising out of SLP (Crl.) No.2600 of 2013)

SUDIP KR. SEN @ BILTU                                     ..Appellant
                                   Versus
STATE OF WEST BENGAL & ORS.                             ..Respondents
                                    WITH
                     CRIMINAL APPEAL NO.  19    of 2016
                 (Arising out of SLP (Crl.) No.4506 of 2013)
GOUTAM GHOSH                                              ..Appellant
                                   Versus
STATE OF WEST BENGAL                                  ..Respondent

                      CRIMINAL APPEAL NO.  21   of 2016
                 (Arising out of SLP (Crl.) No.5362 of 2013)
APU CHATTERJEE @ SOUMITRA                               ....Appellant
                                   Versus
STATE OF WEST BENGAL                                       ..Respondent

                     CRIMINAL APPEAL NO.  23    OF 2016
                 (Arising out of SLP (Crl.) No.1370 of 2014)
SANKAR DAS @ BHAI                                                …Appellant
                                   Versus
STATE OF WEST BENGAL                                    …Respondent
                                     AND
                     CRIMINAL APPEAL NO.  25    OF 2016
                 (Arising out of SLP (Crl.) No.8098 of 2014)
TAPAS DAS @ BHAMBAL                                        …Appellant
                                   Versus
STATE OF WEST BENGAL                                    …Respondent

                               J U D G M E N T

R. BANUMATHI, J.


      Delay condoned.  Leave granted.
2.    These appeals arise  out  of  the  common  judgment  dated  24.09.2012
passed by the High Court of Calcutta dismissing Criminal  Appeal  No.544  of
2004 filed by the appellants and thereby affirming  the  conviction  of  the
appellants under Section 302 read with Section 34 IPC and sentence  of  life
imprisonment and a fine of rupees five thousand imposed on each of them.
3.    Briefly stated case of the prosecution is that on 13.01.2002 at  about
08.30 p.m., complainant-PW1-Gora Das was having tea alongwith  some  of  his
friends at the shop of one Bablu Pal-PW5 at Shakherbazar. Sandipan Majumdar-
PW6 sitting on his motorcycle was also having tea in front of tea  stall  of
PW-5.  At that time,  the  appellants  came  in  a  body  to  the  place  of
occurrence. At first, appellant-Sudip Kumar Sen @  Biltu  (A-3)  abused  the
deceased-Saikat Saha and asked him as to why he did not  meet  Jishu  da  in
the court as he was asked to  do  so  at  several  occasions.  Appellant-Apu
Chatterjee @ Soumitra (A-6) said that if the men of Khoka  were  not  killed
then there would be no peace. On such exhortation,  appellants-Tapas  Das  @
Bhambal (A-2) and Sankar Das @  Bhai  (A-4)  caught  hold  of  Saikat  Saha-
deceased and appellants Goutam Ghosh (A-1) and Sk. Kochi @ Sk.  Mobarak  (A-
5) fired at him and Saikat Saha sustained two gunshot injuries in the  right
chest. Gora Das-PW1 and Sandipan Majumdar-PW6 had immediately taken  injured
Saikat Saha to Calcutta Medical Research  Institute.  Dr.  Debasish  Pal-PW9
examined Saikat Saha and declared  that  he  was  brought  dead  and  issued
Injury Report (Ex.4) and Death Certificate (Ex-P4/1).
4.    Gora Das-PW1 lodged the complaint on 14.01.2002 at  1.45  a.m.  before
Thakurpukur Police Station, on the basis of  which  FIR  was  registered  in
Case No.12 of 2002 under Section 302 read with Section 34 IPC  and  Sections
25  and  27  of  the  Arms  Act  against  unknown  persons.   A.  K.  Ghosh-
Investigating Officer-PW13 had taken up the investigation  and  visited  the
spot and examined the available witnesses  including  PW6-Sandipan  Majumdar
who informed the police that he had witnessed the event and PW-6 also  named
the accused.  On his statement, the appellants and accused Sk. Kochi  @  Sk.
Mobarak and one Jishu Jain were arrested.  After investigation,  chargesheet
was filed against the appellants and other accused under  Section  302  read
with Section 34 IPC, Section 120-B IPC and Sections 25 and 27  of  the  Arms
Act.
5.    To  prove  the  charges  against  the  accused,  prosecution  examined
thirteen witnesses and adduced documentary evidence.  Upon  appreciation  of
evidence and observing  that  PW-6  is  a  trustworthy  witness,  Additional
Sessions Judge,  Alipore  convicted  the  appellants  and  Sk.  Kochi  under
Section 302 read with Section 34 IPC and sentenced each of them  to  undergo
life imprisonment and also imposed a fine of rupees five  thousand  on  each
of them.  The trial court acquitted the co-accused Jishu  Jain  of  all  the
charges levelled against him.  Aggrieved by the verdict of  conviction,  the
appellants filed appeal before the High Court. The High Court vide  impugned
judgment  dated  24.09.2012  dismissed  the  appeal  thereby  affirmed   the
conviction and sentence  imposed  on  the  appellants  as  aforesaid.  Being
aggrieved, the appellants-Goutam Ghosh (A-1), Tapas  Das  @  Bhambal  (A-2),
Sudip Kr. Sen @ Biltu (A-3), Sankar Das @ Bhai (A4)  and  Apu  Chatterjee  @
Soumitra (A-6) are before us.  Accused Sk. Kochi @  Sk.  Mobarak  (A-5)  has
not challenged the impugned judgment.
6.          Learned counsel for  the  appellants  contended  that  both  the
courts below failed to take into account the serious flaws,  inconsistencies
and  contradictions  in  the  statement  of  prosecution   witnesses   which
according to the appellants,  practically  demolished  the  version  of  the
prosecution as propounded by the testimony of   PW-6. It was submitted  that
in the cross-examination, PW-1 categorically stated  that  at  the  time  of
occurrence he and his friends ran to the spot which is at a distance of  few
yards from the tea stall and therefore PW-6 could  not  have  witnessed  the
occurrence sitting on the motor cycle and taking tea  along  with  PW-1  and
version of   PW-6  is  totally  contradictory  to  the  statement  of  PW-1.
Raising doubts as to the credibility of testimony of PW-6, it was  submitted
that PW-6 is said to have accompanied PW-1 in taking  the  deceased  to  the
hospital, he did not reveal the identity of the assailants to PW-1  and  not
even at the time of lodging the FIR which  was  registered  against  unknown
persons.
7.           Per  contra,   learned   counsel   for   the   respondent-State
contended that the culpability of the appellants have  been  proved  to  the
hilt by  the  evidence  of  PW-6  who  was  a  natural  eye-witness  to  the
occurrence and that he was standing outside the  tea  stall  and  was  in  a
vantage position to see the assailants and witness the occurrence.   It  was
further submitted that the courts below recorded concurrent findings to  the
credibility of PW-6 and there is no ground warranting interference with  the
conviction of the appellants.
8.          We  have  considered  the  rival  contentions  and  perused  the
impugned judgment and material on record.
9.          Sandipan Majumdar-PW6  has  stated  that  on  the  date  of  the
incident i.e. on 13.01.2002 at about 8.30 p.m., while he was taking  tea  at
the tea stall at Shakerbazar, Saikat Saha,  PW1-Gora  Das  and  others  were
also taking tea there.  PW-6 had categorically stated  that  the  assailants
armed with firearms came together and Sudip Kumar Sen (A-3) started  abusing
Saikat Saha and questioned him as to why he did not meet  Jishu  da  in  the
court inspite of several reminders. Apu Chatterjee (A-6) shouted that  there
will be no peace if the men of Khoka were not killed.  On such  exhortation,
Tapas Das (A-2), Sankar Das (A-4) caught hold of deceased and  Goutam  Ghosh
(A-1) and Sk. Kochi (A-5) fired  at  Saikat  Saha.   PW-6  stated  that  the
appellants were doing illegal business of collecting  money  from  the  flat
owners in the locality and an altercation took place over  the  said  matter
and PW-6 further stated that  the  appellants  also  used  to  come  to  the
deceased and thus he knew all of them.  PW-6 was examined by the  police  on
the very next day i.e.  on  14.01.2002  and  in  his  statement  before  the
police,  PW-6  named  the  appellants-accused  except  Jishu  Jain  as   the
assailants.  PW-6 was a natural eye-witness to the incident. Throughout  the
searching cross-examination,  PW-6  remained  consistent  and  his  evidence
remained unshaken. That PW-6 is a natural witness is  also  borne  out  from
the fact that PW-6  accompanied  PW1-Gora  Das  in  immediately  taking  the
deceased to the hospital and the same is  evident  from  the  Injury  Report
(Ex.4) and Death Certificate (Ex-4/1) issued by PW9-Dr.  Debasish Pal  which
clearly mention that the deceased was brought to the hospital by   PW-1  and
PW-6.
10.         Complainant-Gora Das (PW-1), though not  named  the  assailants,
in his evidence stated that while he was taking tea  in  the  tea  stall  of
Bablu Pal (PW-5) situated at Shakherbazar Behala  at  about  8.30  p.m.,  he
heard sound of the firearm and when  he  ran  to  the  spot,  he  found  the
deceased-Saikat Saha lying with bleeding injuries and that he along with PW-
6 took the injured to Calcutta  Medical  Research  Institute.   Evidence  of
Pinku Biswas-PW2 is also to the same effect that he heard the sound  of  two
shots and there was chaos in the street and shutters  were  closed  down  by
shopkeepers and after sometime when people came out, they  saw  Saikat  Saha
with gunshot injuries. Evidence of Paritosh Pal-PW3  and  Gora  Das-PW1  who
are the nearby shop owners is also to the same effect.  Though PWs  1  to  4
have not named the assailants,  their  evidence  shows  that  there  was  an
occurrence in which Saikat Saha was  shot  by  the  assailants  which  lends
assurance to the evidence of PW-6.   Evidence  of  PW-6  that  the  deceased
sustained two gunshot injuries is also supported  by  the  medical  evidence
i.e. Injury Report (Ex.4) and  Death  Certificate  (Ex.4/1)  issued  by  Dr.
Debasish Pal (PW-9).
11.         It is well-settled that the court may act on a  testimony  of  a
single witness though uncorroborated, provided that the testimony of  single
witness is found reliable.  Trial court which had the opportunity of  seeing
and hearing PW-6 found him wholly reliable and  trustworthy  and  held  that
evidence of Sandipan Majumdar-PW6 cannot be  doubted  as  far  as  the  role
attributed to A-1 to A-6 except Jishu Jain is concerned, which was  affirmed
by the High Court.  We find no  ground  to  interfere  with  the  concurrent
finding recorded by the Courts below as to the reliability of  PW-6  and  to
record the conviction.
12.         Observing that there is no impediment for  recording  conviction
based on the testimony of a  single  witness  provided  it  is  reliable  in
Prithipal Singh & Ors. vs. State of Punjab & Anr.,         (2012) 1 SCC  10,
it was observed as under:-
“49. This Court has consistently held that as a general rule the  court  can
and may act on the testimony of a  single  witness  provided  he  is  wholly
reliable. There is no legal impediment in convicting a person  on  the  sole
testimony of a single witness. That is the  logic  of  Section  134  of  the
Evidence Act. But if there are doubts about the testimony,  the  court  will
insist on corroboration. In fact, it is not the number or the quantity,  but
the quality that is material. The time-honoured principle is  that  evidence
has to be weighed and not counted. The test is whether the  evidence  has  a
ring of truth, is cogent, credible and trustworthy or otherwise.  The  legal
system has laid emphasis on value, weight and quality  of  evidence,  rather
than on quantity, multiplicity or plurality of witnesses. It is,  therefore,
open to a competent court  to  fully  and  completely  rely  on  a  solitary
witness and record conviction. Conversely, it  may  acquit  the  accused  in
spite of testimony of several witnesses if it is  not  satisfied  about  the
quality of evidence.” [See Vadivelu Thevar v. State of Madras, AIR  1957  SC
614, Sunil Kumar v. State (Govt. of NCT of Delhi, (2003) 11 SCC 367,  Namdeo
v. State of Maharashtra, (2007) 14 SCC 150 and Bipin Kumar Mondal  v.  State
of W.B., (2010) 12 SCC 91]

13.         The appellants are convicted for the offence under  Section  302
read with Section 34 IPC. Learned counsel for  appellants–accused (A-2 to A-
4 and A-6) submitted that accused Sudip Kumar Sen (A-3) and  Apu  Chatterjee
(A-6) are said to have abused the deceased and Tapas Das  (A-2)  and  Sankar
Das (A-4) are alleged to have caught hold of the deceased and  there  is  no
evidence that A-2 to A-4 and A-6 have shared common intention with other co-
accused to fire at the deceased and therefore conviction  of  these  accused
under Section 302 read with Section 34 IPC is not sustainable.
14.         Section 34 IPC embodies the principle of joint liability in  the
doing of a criminal act and essence of that liability is  the  existence  of
common intention. Common intention implies acting in concert  and  existence
of a pre-arranged plan which  is  to  be  proved/inferred  either  from  the
conduct of the accused persons or from attendant  circumstances.  To  invoke
Section 34 IPC, it must be established that the criminal  act  was  done  by
more than one person in furtherance of common intention  of  all.  It  must,
therefore, be proved that:- (i) there was common intention on the  part   of
several persons to  commit  a  particular  crime  and  (ii)  the  crime  was
actually committed by them in furtherance of that common  intention.  Common
intention implies pre-arranged plan. Under Section 34 IPC, a pre-concert  in
the sense of a distinct previous plan is not necessary  to  be  proved.  The
essence of liability under Section 34  IPC  is  conscious  mind  of  persons
participating in the criminal action to bring  about  a  particular  result.
The question whether there was any common  intention  or  not  depends  upon
inference to be drawn from the proved facts and circumstances of each  case.
The totality of the  circumstances  must  be  taken  into  consideration  in
arriving at the conclusion whether the accused had  a  common  intention  to
commit an offence with which they could be convicted.
15.         Considering the facts and circumstances of the case in hand,  it
is evident that there was prior concert and that the appellants  have  acted
in furtherance of common intention.  As seen from the evidence of PW-6,  all
the appellants and another co-accused Sk. Kochi were doing illegal  business
of extorting money from the flat owners.  On the  date  of  occurrence,  all
the appellants and another co-accused Sk.  Kochi  came  together  and  Sudip
Kumar Sen @ Biltu (A-3) started abusing the deceased and Apu Chatterjee  (A-
6) exhorted others that if the men of Khoka were not killed, there would  be
no peace. On such exhortation, Tapas  Das  and  Sankar  Das  (A-2  and  A-4)
caught hold of the deceased and Goutam Ghosh and Sk.  Kochi  (A-1  and  A-5)
fired at the deceased. Facts and circumstances clearly establish meeting  of
minds and common intention of the appellants in  committing  the  murder  of
Saikat Saha and the appellants were  rightly  convicted  under  Section  302
read with Section 34 IPC.  No ground for interference under Article  136  of
the Constitution of India is made out.
16.          In  the  result,  all  the  appeals  fail  and  are   dismissed
accordingly.

                                                              ……………………..CJI.
                                                               (T.S. THAKUR)



                                                               ………………………..J.
                                        (R. BANUMATHI)


New Delhi;
January  07, 2016

the appellant is a retired government official and that before obtaining no dues certificates from the respondent-authority, the appellant has deposited a sum of Rs.6,79,557/- and that after obtaining actual physical possession, the appellant has spent his hard earned money and also substantial part of his retiral benefits in putting up the construction and that the appellant be permitted to retain the plot and the building constructed over the plot in question. It was also submitted that by so permitting the appellant to retain the plot, HUDA may not loose in any manner. To substantiate the contention that the appellant has put up the construction, photographs were also filed by the appellant which shows that only finishing work is to be completed. 11. Considering the facts and circumstances of the case and that the appellant has put up substantial construction, we directed the respondent-authority to file rate of the plot in Sector-64 at various point of time so as to consider the claim of the appellant to permit him to retain the plot in question with the construction thereon. Pursuant to the order dated 19.11.2015, the respondent-authority has filed its affidavit, relevant part of which is extracted herein below:- “(1) It is submitted that the present circle rate of Sector-64 in which the disputed plot is situated is fixed @ Rs. 22,000/- per sq. mtrs. for the year 2014-15. (2) That the last allotment in Sector-64, Faridabad was made @ Rs. 6200/- per sq. mtrs. in the year 2010. (3) That the current rate and circle rate of Sector-2 & 65, Faridabad (which are in the vicinity of Sector-64) is as under:- | Sector |Current HUDA Rate |Circle Rate | | |(per sq.mtr.) |(per sq.mtr.) | | 2 |Rs. 15,500/- |Rs. 22,000/- | | 65 |Rs. 12,000/- |Rs. 22,000/- | (4) That the year-wise rates of allotment of Sector-64 are as under:- | Year |HUDA Rate (per sq. yard) | |2001 |Rs.2718/-including enhanced compensation. | |2005 |Rs. 2718/- including enhanced compensation. | That the rate for the year 2010 was Rs. 6200/- per sq. mtrs. and after the year 2010, the rate was not finalized till the year 2014-15, hence the deponent is not in position to intimate the rate of the year 2011. Moreover it is submitted that the rate of the year 2014-15 is Rs. 10500/- per sq. mtr.” Considering the fact that the appellant has deposited the then cost of the plot way back in 2009 and other facts and circumstances and in the interest of justice, we direct HUDA to permit the appellant to retain the plot subject to the condition that the appellant pays the cost of plot at the prevailing HUDA rate i.e. Rs.10,500/- per sq. mtr. 12. The impugned orders passed by the National Commission are set aside and these appeals are allowed. Respondent-authority/HUDA shall permit the appellant to retain the plot subject to the appellant’s depositing the amount at the current HUDA rate of the year 2014-15 i.e. Rs.10,500/- per sq. mtr. after adjusting the amount already deposited by the appellant. The appellant shall deposit the said amount within four months from the date of this judgment and on such deposit, HUDA shall execute the necessary document and issue no objection certificate and clearances as may be required within four weeks thereafter. It is further directed that the respondent-authority shall proceed against the delinquent officials/officers who are responsible for the lapses in accordance with law. In so far as action taken in the disciplinary proceedings, the respondent-authority shall file compliance report before this Court within nine months. In the facts and circumstances of the case, we make no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL  NOS.  52-53    OF 2016
             (Arising out of SLP (Civil) Nos.5567-5568 of 2012)

PARDEEP SHARMA                                        ..Appellant

                                   Versus

CHIEF ADMINISTRATOR
HARYANA URBAN DEV. AUTHORITY & ANR.             ..Respondents



                               J U D G M E N T


R. BANUMATHI, J.


            Leave granted.
2.          These appeals are filed assailing the  orders  dated  19.07.2011
and  29.09.2011  passed  by  the  National   Consumer   Disputes   Redressal
Commission, New Delhi  (for  short  ‘National  Commission’)  dismissing  the
Revision Petition No.671/2011 and also the Review  Application  No.142/2011,
thereby confirming the order dated 02.12.2010 passed by the  State  Consumer
Disputes  Redressal  Commission,  Haryana  (for  short  ‘State  Commission’)
whereby it was observed that the appellant-complainant having  accepted  the
refund amount of  10% and was no longer a consumer and has no  locus  standi
to seek  possession of the plot allotted to him.
3.          Brief facts which led to the filing  of  these  appeals  are  as
follows:- The appellant/complainant was allotted a plot bearing  No.1048  in
Sector 64, Faridabad  measuring  250  sq.  yds.  vide  Memo  No.  399  dated
01.01.2001 at the rate of Rs.1,865/- per sq. yd. The  appellant  along  with
the application form had deposited 10% as earnest money and 15% of the  sale
consideration was deposited on 22.01.2001.  Balance amount  of  75%  of  the
total cost was to  be  deposited  by  the  appellant  in  six  yearly  equal
instalments with  15%  interest  per  annum  to  Haryana  Urban  Development
Authority (for  short  ‘HUDA’).   HUDA  issued  the  demand  notice  to  the
appellant calling upon him to pay a sum of Rs.59,782.50 vide  Memo  No.38698
dated 04.10.2002 on account of enhancement  of the cost of the  plot,  which
as per the terms of  allotment they have right to do so.  The appellant  has
failed to deposit the said amount and hence the possession of the  plot  was
not delivered to him.  Alleging that there was deficiency  on  the  part  of
HUDA for not delivering the possession,  the  appellant  filed  a  complaint
before the District Consumer Disputes Redressal Forum, Faridabad (for  short
‘District Forum’) praying for issuance of direction to  HUDA  to  hand  over
the possession of the plot  by  adjusting  the  amount  already   deposited.
During the pendency of the said complaint before  the  District  Forum,  the
amount deposited by the appellant towards price of the plot was refunded  to
and accepted by the appellant.   The  fact  that  the  appellant  had  taken
refund was however not brought to the notice of  the  District  Forum  which
passed the award  on  19.12.2005.   The  District  Forum  vide  Order  dated
19.12.2005 allowed the complaint and directed the  respondents  to  re-allot
the same plot to  the  appellant  on  the  same  price  and  hand  over  the
possession of the same to him.  The District Forum ordered that  the  amount
already paid by the appellant to be adjusted against price of the  plot  now
to  be  allotted  to  the  appellant  as  per  the   order.    Additionally,
respondents were also directed to  pay  Rs.50,000/-  on  account  of  mental
agony, harassment and damages and also Rs.5,000/- on account  of  litigation
expenses.
4.           Aggrieved  by  the  said  order,  HUDA  filed  appeal   bearing
No.708/2006 before the  State  Commission.   When  the  appeal  was  pending
before the State Commission, the appellant filed execution petition  and  in
compliance of the order dated 02.09.2009 by the District Forum in  Execution
Petition No.504 dated 12.05.2006, physical possession  was  handed  over  to
the appellant. The State Commission vide order dated 02.12.2010 allowed  the
appeal and thereby  set  aside  the  award  passed  by  the  District  Forum
observing that the  respondent/complainant  cannot  claim  any  relief  with
respect to the plot voluntarily surrendered by him and  the  District  Forum
erred in accepting the complaint. The State  Commission  further  held  that
the complainant having accepted the refund amount of 10% after  surrendering
the plot, the respondent/complainant was no longer a consumer.   As  against
the order passed by  the  State  Commission,  appellant  preferred  revision
before the National Commission and the same was dismissed  by  the  impugned
order dated 19.07.2011.  The review application  No.142/2011  filed  by  the
appellant also came to be  dismissed  by  another  order  dated  29.09.2011,
which is also now under challenge.
5.          Mr.  S.R.  Singh,  learned  Senior  Counsel  for  the  appellant
submitted that the State Commission and the  National  Commission  erred  in
not taking into consideration that the appellant has already  deposited  the
total of sale consideration and that he obtained DPC completion  certificate
after construction as per the sanctioned building  plan.  It  was  submitted
that the action of HUDA for cancellation of the allotment of  the  plot  and
refund of the amount deposited by the appellant was  without  providing  any
reasonable opportunity  of  hearing  to  the  appellant  which  was  totally
arbitrary and that the District Forum rightly passed the award directing re-
allotment of the plot  at  the  same  rate  and  the  State  Commission  and
National Commission ought not to have interfered with the same.
6.           Learned  counsel  for  the  respondents  submitted    that   in
compliance of the order dated 02.09.2009 passed by  the  District  Forum  in
Execution Petition No. 504 dated  12.05.2006,  physical  possession  of  the
plot was handed over to the appellant. Learned counsel for  the  respondents
further submitted that having accepted refund of the amount,  the  appellant
was no longer a consumer and cannot seek  for  allotment  of  plot  and  the
State Commission and the National  Commission  rightly  reversed  the  award
passed by the District Forum.
7.          We have carefully considered the rival submissions  advanced  by
both the parties and perused the impugned orders and material on record.
8.          As noticed above that even while the matter was  pending  before
the State Commission in  appeal,  the  Estate  Officer  of  the  respondent-
authority in pursuance  of  the  order  passed  by  the  District  Forum  in
Execution Petition No.504 and by letter  dated  15.04.2008  regularized  the
allotment of the  plot  and  handed  over  the  possession  thereof  to  the
appellant.   Possession  was  actually  delivered  to   the   appellant   on
07.10.2009. Taking note of these facts,  by  order  dated  01.11.2013,  this
Court has directed the respondent-authority to hold an inquiry and  identify
the   person(s)   responsible   for   issuing    orders/certificates    like
regularization, delivery of possession etc.  We may usefully  refer  to  the
relevant part of the order dated 01.11.2013 which reads as under:-
“We have heard learned counsel for the  parties  at  some  length.   In  the
ordinary course, we would have, in the light of the affidavit filed  by  the
respondent-Authority, disposed of  the  matter  with  a  suitable  direction
regarding  payment  of  the  extension  of  fee  by  the  petitioner.   What
dissuades us from doing so is  the  fact  that  consequent  upon  the  order
passed by the District  Consumer  Forum  and  while  the  matter  was  still
pending before the State Commission in appeal, the  Estate  Officer  of  the
respondent-Authority had by letter dated 15th April,  2008  regularised  the
allotment of the plot and offered the possession thereof to the  petitioner.
 This order, it appears, was passed either in ignorance  of  the  fact  that
the HUDA had challenged the order passed by the District Consumer  Forum  or
in deliberate suppression of the same.  In the ordinary course if  HUDA  had
assailed the order passed by the  District  Consumer  Forum,  there  was  no
question of the Estate  Officer  going  ahead  with  regularization  of  the
allotment or delivering possession of the plot-in-question.  Not  only  that
we find that the possession was actually delivered to the petitioner on  7th
October, 2009 and a “no encumbrance certificate” issued on 9th August,  2013
while the matter was pending before the  State  Commission.   Building  plan
for the proposed construction was sanctioned on 21st September,  2010.   All
this happened  while  the  proceedings  before  the  State  Commission  were
pending  to  which  respondent-HUDA  was  a  party.   The  State  Commission
eventually set aside the order passed by the District Consumer Forum on  2nd
December, 2010.  Even so the respondent-HUDA issued  a  DPC  Certificate  on
20th December, 2010, no matter the order passed  by  the  District  Consumer
Forum directing regularised/re-allotment and  possession  had  already  been
set aside by the State Commission.

We are told by learned counsel for the  petitioner  that  construction  over
the  plot-in-question  has  since  been  completed.   We  however  fail   to
appreciate how despite orders  passed  by  the  State  Commission  and  that
passed  by  the  National  Commission,  the   petitioner   was   granted   a
regularisation certificate, given possession  of  the  plot,  issued  a  “no
encumbrance certificate”, granted a DPC certificate and given  sanction  for
the construction of  the  proposed  building.   It  is  obvious  that  utter
confusion and lack of communication prevails within  HUDA  for  one  section
does not appear to be knowing what the other section  is  doing  which  does
not speak well about the working of the Authority.  At any rate,  before  we
pass any further direction in the matter we  deem  it  just  and  proper  to
direct that the Chief Administrator, HUDA, shall hold an  inquiry  into  the
circumstances in which the developments, mentioned above, have  taken  place
and  also  identify  the  persons  responsible  for   issuing   orders   and
certificates like regularisation, delivery of  possession,  “no  encumbrance
certificate”, DPC certificate and sanction of the  building  plans  for  the
construction of the proposed building, despite  the  orders  passed  by  the
State Commission and that passed by the National  Commission.   The  inquiry
shall be expedited and  a  report  to  this  Court  submitted  as  early  as
possible but not later than four months from the date of receipt of  a  copy
of this order.”

9.          Inspite of the  above  order,  there  was  delay  in  conducting
inquiry  and  also  taking  action  against  the  officials  of   the   HUDA
responsible for dereliction of  duties.  By  order  dated  17.11.2015,  this
Court has directed the Chief Administrator, HUDA to be present in the  Court
and also to file the response.  Thereafter, HUDA has filed its  response  on
19.11.2015  indicating the  names of the officials responsible  for   lapses
in this case and also the status of action taken and  we  are  of  the  view
that the action taken against erring officials are  to  be  taken  to  their
logical conclusion.
10.         On behalf of the appellant, it was submitted that the  appellant
is  a  retired  government  official  and  that  before  obtaining  no  dues
certificates from the respondent-authority, the appellant  has  deposited  a
sum of Rs.6,79,557/- and that after obtaining  actual  physical  possession,
the appellant has spent his  hard earned money and also substantial part  of
his retiral benefits in putting up the construction and that  the  appellant
be permitted to retain the plot and the building  constructed over the  plot
in question.  It was also submitted that by so permitting the  appellant  to
retain the plot, HUDA may not loose  in  any  manner.  To  substantiate  the
contention that the appellant has put up the construction, photographs  were
also filed by the appellant which shows that only finishing work  is  to  be
completed.
11.         Considering the facts and circumstances of  the  case  and  that
the  appellant  has  put  up  substantial  construction,  we  directed   the
respondent-authority  to file rate of the  plot   in  Sector-64  at  various
point of time so as to consider the claim of the appellant to permit him  to
retain the plot in question with the construction thereon. Pursuant  to  the
order dated 19.11.2015, the respondent-authority has  filed  its  affidavit,
relevant part of which is extracted herein below:-
“(1)  It is submitted that the present circle rate  of  Sector-64  in  which
the disputed plot is situated is fixed @ Rs. 22,000/- per sq. mtrs. for  the
year 2014-15.

(2)   That the last allotment in Sector-64, Faridabad was made @ Rs.  6200/-
per sq. mtrs. in the year 2010.

(3)   That the current rate and circle rate  of  Sector-2  &  65,  Faridabad
(which are in the vicinity of Sector-64) is as under:-

|     Sector |Current HUDA Rate     |Circle Rate               |
|            |(per sq.mtr.)         |(per sq.mtr.)             |
|        2   |Rs. 15,500/-          |Rs. 22,000/-              |
|       65   |Rs. 12,000/-          |Rs. 22,000/-              |


(4)  That the year-wise rates of allotment of Sector-64 are as under:-

|    Year   |HUDA Rate (per sq. yard)                           |
|2001       |Rs.2718/-including enhanced compensation.          |
|2005       |Rs. 2718/- including enhanced compensation.        |


      That the rate for the year 2010 was  Rs.  6200/-  per  sq.  mtrs.  and
after the year 2010, the rate was  not  finalized  till  the  year  2014-15,
hence the deponent is not in position to  intimate  the  rate  of  the  year
2011.  Moreover it is submitted that the rate of the  year  2014-15  is  Rs.
10500/- per sq. mtr.”

Considering the fact that the appellant has deposited the then cost  of  the
plot way back in 2009 and other facts and circumstances and in the  interest
of justice, we direct HUDA to  permit  the  appellant  to  retain  the  plot
subject to the condition that the appellant pays the cost  of  plot  at  the
prevailing HUDA rate i.e. Rs.10,500/- per sq. mtr.
12.         The impugned orders passed by the National  Commission  are  set
aside  and  these  appeals  are  allowed.   Respondent-authority/HUDA  shall
permit  the  appellant  to  retain  the  plot  subject  to  the  appellant’s
depositing the amount at the current HUDA rate  of  the  year  2014-15  i.e.
Rs.10,500/- per sq. mtr. after adjusting the  amount  already  deposited  by
the  appellant.  The appellant shall deposit the  said  amount  within  four
months from the date of this  judgment  and  on  such  deposit,  HUDA  shall
execute the necessary  document  and  issue  no  objection  certificate  and
clearances as may be required within four weeks thereafter.  It  is  further
directed that the respondent-authority shall proceed against the  delinquent
officials/officers who are responsible for the  lapses  in  accordance  with
law.  In so far  as  action  taken  in  the  disciplinary  proceedings,  the
respondent-authority shall file compliance report before this  Court  within
nine months.  In the facts and circumstances of the case, we make  no  order
as to costs.

                                                              .…………………….CJI.
                                (T.S.THAKUR)



                               ....…………………….J.
                                     (R. BANUMATHI)

New Delhi;
January   7, 2016