High Court thereby setting aside the conviction of the accused under section 376 IPC and altering the conviction under section 302 to section 304 Part II IPC, sentencing the accused to 7 years’ imprisonment while maintaining the conviction recorded by the trial court under section 454 IPC thereby sentencing him to undergo RI for one year- not correct .=In State of Punjab v. Gurmit Singh & Ors. (1996) 2 SCC 384, this Court has observed :The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case of even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook…”= It is impossible to accept this submission because if the appellant set fire to the deceased after accused No.6 had poured kerosene on his body, there cannot be any doubt that the intention of the appellant was to kill the deceased.” = In view of the aforesaid discussion, we are of the considered opinion that the judgment and order partly allowing the appeal by the High Court, deserves to be and is hereby set aside. The judgment and order of conviction and sentence passed by the trial court is hereby restored. The appeal is accordingly allowed.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.668 OF 2011



State of Assam                               … Appellant

Vs.

Ramen Dowarah                                … Respondent



                               J U D G M E N T



ARUN MISHRA, J.



1.    The appeal has been preferred by the State against  the  judgment  and
order of the High Court thereby setting aside the conviction of the  accused
under section 376 IPC and altering  the  conviction  under  section  302  to
section 304 Part II IPC, sentencing the accused  to  7  years’  imprisonment
while maintaining the conviction recorded by the trial court  under  section
454 IPC thereby sentencing him to undergo RI for one year.

2.    As per the prosecution case the incident took  place  on  1.5.2003  at
about 5 p.m. when accused Ramen  Dowarah  and  Janmejoy  Gogoi  alias  Sanju
entered the house of victim and committed rape  on  her  and  after  pouring
kerosene oil set her ablaze. When the victim  raised  hue  and  cry,  people
assembled and the victim was taken to the Civil Hospital. She sustained  55%
burn injuries as her  condition  was  serious  she  was  referred  to  AMCH,
Dibrugarh where in the course of her treatment she died after  2  months  on
11.7.2003. On the date of the incident the paternal uncle of the victim  Mr.
Khirode Hazarika, PW 1, lodged a First Information Report at P.S. Tinsukia.

3.    The accused were chargesheeted. After committal they  were  tried  for
commission  of  offences   under   sections   454/376(G)/302/34   IPC.   The
prosecution examined 11 witnesses. The accused  persons  abjured  the  guilt
and contended that they had been falsely implicated in the case.  The  trial
court convicted the  accused/respondent  Ramen  for  commission  of  offence
under sections 454/376/302 IPC, and  sentenced him to 1 year, 10  years  and
life imprisonment respectively  and  a  fine  of  Rs.3,000;  in  default  of
payment of fine to  undergo  simple  imprisonment  for  1  month.  Aggrieved
thereby, accused Ramen preferred appeal before the High Court and  the  same
has been partly allowed. Aggrieved thereby State has come up in appeal.

4.    The High Court has found that it  was  a  case  of  consensual  sexual
intercourse with the accused Ramen and when the victim threatened  him  that
the incident would be disclosed by her to mother, on the spur of the  moment
he poured kerosene oil on her so as to cause burn injuries. It could not  be
said to be a case of intentionally causing death falling under  section  300
IPC, Hence conviction under section 302 IPC has been set  aside.  Conviction
has been recorded under section 304 Part II IPC.

5.    Learned counsel appearing on behalf of the State  has  submitted  that
it was not a case of consensual  sexual  intercourse.  The  High  Court  has
gravely erred in law in reversing  the  finding  of  the  trial  court.  The
victim had raised a hue and cry and threatened the accused  that  she  would
disclose the incident to her mother. On that  accused  had  poured  kerosene
oil on her and set her ablaze. It could not be said to  be  a  case  falling
under section 304 Part II IPC. The conviction was rightly  recorded  by  the
trial court under sections 302 and 376 IPC.

6.    Learned counsel appearing on behalf of the respondent has  strenuously
argued that the victim had not resisted  when  the  sexual  intercourse  was
performed. In her dying declaration she has not  stated  that  she  resisted
the commission of sexual intercourse. In the  circumstances  as  the  victim
had threatened accused to disclose the incident to her mother, in a  fit  of
rage, the accused had poured kerosene oil  over  her  without  intending  to
cause death of the deceased. There was no pre-meditation.  Thus  considering
the relatively young age of the accused the  conviction  under  section  304
Part II  IPC  calls  for  no  interference.  Accused  could  not  have  been
convicted in view of the evidence adduced by the prosecution  under  section
376 IPC.

7.    We have carefully assessed the evidence adduced  by  the  prosecution.
When we consider the evidence of  the  various  witnesses  examined  by  the
prosecution, Khirode Hazarika – PW1 – has stated that the deceased had  made
oral dying  declaration  as  to  the  complicity  of  the  accused.  Mridula
Hazarika, PW2, saw the accused Ramen and  other  acquitted  accused  fleeing
the house, in oral dying declaration victim had  told  her  that  Ramen  had
destroyed her life. She heard the shrieks of the brother of the  victim  and
then came to the house. Lalita Hazarika, PW3,  is  another  witness.  Victim
was her niece. In the  oral  dying  declaration  made  to  her,  victim  had
informed that Ramen  and  other  accused  had  ruined  her  life.  Aoilabati
Hazarika, PW4, is the mother of the victim. She saw the victim  lying  burnt
in the house. The victim  told  to  her  that  when  she  stated  she  would
disclose the incident to her, on that accused had poured  kerosene  oil  and
set her ablaze. Manash Hazarika, PW5, a minor aged 14 years, brother of  the
deceased has stated that while grandmother Maniki Hazarika and  the  witness
were in the kitchen, her elder sister the victim was lying  on  the  bed  as
she was not feeling well, grandmother Maniki was deaf and  blind;  for  that
very reason the witness was with her at that time accused Ramen  and  Sanjay
came to the house.  They  had  shut  the  rear  door  and  committed  sexual
intercourse with the deceased. It was further stated that there was  a  door
between kitchen and bedroom  which  was  also  closed  by  the  accused.  He
witnessed the incident through a slit in  the  door.  When  his  sister  the
victim cried accused Ramen threatened to kill the witness. When  the  victim
told that she would narrate the incident to her mother,  this  prompted  the
accused to pour kerosene over her and set her ablaze. Victim was  wearing  a
frock. Ramen had taken off the clothes of his sister and committed  the  bad
act. His sister had no clothes on her when the accused poured  kerosene  oil
over her and set her ablaze.  The  witness  raised  commotion  and  on  that
Mridula Hazarika, his elder sister, arrived on the scene and thereafter  the
victim was taken to the hospital. According to the witness both the  accused
persons committed rape. However, other accused Sanjay has been accorded  the
benefit of doubt by the trial court as deceased  in  her  dying  declaration
did not attribute commission of sexual intercourse to Sanjay, the  acquitted
accused.

8.    Dr. B.C. Roy Medhi performed postmortem and  stated  that  the  victim
died due to burn injuries. Dr.  Alaka  Devi,  PW9,  initially  examined  the
victim on the date of the incident. She  has  stated  that  the  victim  had
stated to her that when she cried, accused poured kerosene oil  on  her  and
set  her  ablaze.  PW-10,  Judicial  Magistrate  had  recorded   the   dying
declaration of the deceased under section  164  Cr.P.C.  in  which  she  has
clearly stated that accused Ramen had committed sexual intercourse with  her
and on being told that she would disclose the incident to her mother,  after
pouring kerosene oil on her, she was set ablaze.

9.    Considering the aforestated state of evidence what emerges is that  it
could not be said to be a case of consensual  sexual  intercourse.  Evidence
and circumstances militate against it being consensual  sexual  intercourse.
The age of the victim was mentioned in the FIR as 14 years. In  the  medical
report, Doctor has recorded the age of the victim to be  14  years.  In  the
postmortem report also age is mentioned as 15  years.  However  radiological
examination evidence so as to ascertain the age  of  the  deceased  has  not
been adduced. Hence we refrain from upsetting the finding of the High  Court
that the prosecution  has  not  been  able  to  establish  the  age  of  the
deceased. However it remains that she  was  young  and  not  well-built  and
could be over-powered very easily. It has come  in  the  evidence  that  the
evidence of PW5 namely, Manash Hazarika who is the brother  of  the  victim,
that when the victim had cried, the witness was threatened by accused  Ramen
and thereafter accused Ramen had poured kerosene oil on the victim  and  set
her ablaze. It has also come in the statement of  PW9  Dr.  Alka  Devi  that
when the  victim  had  given  history  which  is  to  be  treated  as  dying
declaration she stated to the effect that when “she  cried,  accused  poured
kerosene oil on her and set her ablaze”.  There  is  nothing  to  doubt  the
veracity of the statement recorded in the medical  report  which  was  based
upon the statement made by the victim and has been proved by PW-9 Dr.  Alaka
Devi. Thus, it is crystal clear that it was not a case of consensual  sexual
intercourse, but the victim had made hue and cry on commission  of  rape  on
her and also on being threatened that she would narrate the incident to  her
mother, accused Ramen had set her ablaze after  pouring  kerosene  over  her
body. Thus the High Court has erred in upsetting the finding  of  the  trial
court which was based on the aforesaid circumstances  and  the  evidence  on
record which clearly makes out that it was not a case of  consensual  sexual
intercourse. In the case of consensual sexual intercourse victim  would  not
have raised hue and cry  and  would  not  have  immediately  threatened  the
perpetrator of the crime with the disclosure of the incident to her  mother.
She was clothless when kerosene oil was poured on her as stated  by  brother
PW-5. It was in fact in order to remove the evidence of rape  accused  Ramen
had poured kerosene on her and set her ablaze so that she  is  silenced  and
his sin does not see the light of  the day. However, the minor  brother  had
witnessed the incident by peeping from the slit  of  door  and  victim  also
survived for some time to narrate the incident.  In  our  opinion  the  High
Court has erred in law in acquitting the accused Ramen  from  commission  of
the offence under section 376 IPC. Men may lie but the circumstances do  not
is cardinal principle of evalution of evidence. The circumstances, the  oral
evidence and dying declarations of the deceased unerringly pointed out  that
it was not a case of consensual sexual intercourse. The  dying  declarations
have to be read together immediate conduct of victim takes it out  to  be  a
case of consensual sexual  intercourse.  Accused  has  denied  in  toto  the
commission of offence in the statement recorded under  section  313  Cr.P.C.
Thus in view of the aforesaid evidence we  have  no  hesitation  in  setting
aside the finding of the High Court to the effect that  it  was  a  case  of
consensual sexual intercourse. We restore the finding recorded by the  trial
court.    In State of Punjab v. Gurmit Singh & Ors. (1996) 2 SCC  384,  this
Court has observed :

“The courts must, while evaluating evidence, remain alive to the  fact  that
in a case of rape, no self-respecting woman would come forward  in  a  court
just to make a humiliating statement against her honour such as is  involved
in the commission of rape on her. In  cases  involving  sexual  molestation,
supposed considerations which have no material effect  on  the  veracity  of
the  prosecution  case  of  even  discrepancies  in  the  statement  of  the
prosecutrix should not, unless the  discrepancies  are  such  which  are  of
fatal nature, be allowed to throw  out  an  otherwise  reliable  prosecution
case. The inherent bashfulness of the females and the  tendency  to  conceal
outrage of sexual  aggression  are  factors  which  the  courts  should  not
overlook…”



10.   Coming to the question whether it was a  case  under  section  302  or
under section 304 Part II IPC for recording the  aforesaid  conclusion,  the
High Court has held that on the spur of  the  moment  the  accused  had  set
ablaze the victim on  being  threatened  that  the  incident  of  consensual
sexual intercourse would be disclosed by her  to  mother.  In  view  of  our
finding that it was not a case of  consensual  sexual  intercourse  and  the
shameful method and manner in which the incident has taken place, leaves  no
room for any doubt that the accused wanted to  eliminate  the  deceased  for
all time to come. He intended to cause death by setting her ablaze  so  that
commission of offence of rape  does  not  see  the  light  of  the  day.  No
circumstance has been brought on record to indicate that it was  a  case  of
any exception, to take it out from the realm of section 300  IPC.  Thus  the
High Court in our opinion has erred in holding that accused did  not  intend
to cause death. The facts and circumstances which have been proved  indicate
that the accused wanted to get rid of the victim by causing her  death.  The
doctor has also opined that the injuries were dangerous to life  and  victim
was taken in a precarious condition to the doctor PW-9.  She  could  survive
for 2 months, is not the test. It is a case where accused  clearly  intended
to kill deceased after committing the  crime  so  as  to  silence  her.  The
overall circumstances established to  the  hilt  that  accused  intended  to
cause  death  by  setting  her  ablaze  after  committing  forcible   sexual
intercourse.   The submission of the counsel  appearing  on  behalf  of  the
accused  that  the   accused  poured  kerosene  oil  on   being   threatened
disclosure of the incident by  victim  to  her  mother,  was  the  cause  of
setting her ablaze. The aforesaid conduct does not exculpate  but  indicates
the  intendment  of  accused  to  cause  death  and  makes  him  liable  for
punishment under section 302 IPC. The act was done  with  the  intention  of
causing death. The intention to  kill  is  present  in  the  case.  The  act
amounts to murder. In Bandarupalli Venkateswarlu v. State of Andhra  Pradesh
[(1975) 3 SCC 492], this Court has considered intention of pouring  kerosene
and causing fire and observed thus :



“Relying on the circumstance that the appellant tried to put out  the  fire,
learned Counsel for the appellant urged that the appellant had no  intention
to commit the murder of the  deceased  and  cannot  therefore  be  convicted
under Section 302. It is impossible to accept  this  submission  because  if
the appellant set fire  to  the  deceased  after  accused  No.6  had  poured
kerosene on his body, there cannot be any doubt that the  intention  of  the
appellant was to kill the deceased.”



11.   In view of the aforesaid discussion, we are of the considered  opinion
that the judgment and order partly allowing the appeal by  the  High  Court,
deserves to  be  and  is  hereby  set  aside.  The  judgment  and  order  of
conviction and sentence passed by the trial court is  hereby  restored.  The
appeal is accordingly allowed.

12.   The accused to be taken  into  custody  forthwith  to  serve  out  the
remaining period of sentence.



…………………………J.
(Kurian Joseph)



New Delhi;                        .………………………..J.
January 11, 2016.                       (Arun Mishra)

justification for allowing application for transfer from the court where the trial was pending to the court of another learned Additional Sessions Judge.= he could overhear certain conversation between the informant and his son that the trial would be surely taken up for hearing from the next date onwards and all the accused persons would definitely be convicted. As further alleged, the Presiding Officer said something regarding the trial which the accused correlated with the conversation he had overheard between the informant and his son. Under such circumstances, he filed Criminal Miscellaneous Application No. 545 of 2015 under Section 408 CrPC before the Principal Sessions Judge, Kheda for transfer of the sessions case to any other court in the same Sessions Division.=So far as apprehension is concerned, it has to be one which would establish that justice will not be done. In this context, we may profitably refer to a passage from a three-Judge Bench decision in Gurcharan Dass Chadha v. State of Rajasthan[1], wherein it has been held:- “… The law with regard to transfer of cases is well-settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension.”= “… It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks—more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently. Every error, however gross it may look, should not, therefore, be attributed to improper motive.”-Thus analysed, we are unable to sustain the order of transfer passed by the High Court. Consequently, the appeals are allowed in part. The finding recorded as regards the jurisdiction of the learned Sessions Judge is sustained, and as far as the direction to the Principal Sessions Judge to transfer the case from the 3rd Additional Sessions Judge to some other court being vulnerable and wholly unsustainable is set aside.

Reportable



                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL NOS. 1592-1593 of 2015
                (@ S.L.P. (Criminal) Nos. 9374-9375 of 2015)


Usmangani Adambhai Vahora               …Appellant

                                   Versus

State of Gujarat & Anr.                      …Respondents



                               J U D G M E N T


Dipak Misra, J.



      The seminal issue that has emerged for consideration in these  appeals
is whether the High Court in exercise of jurisdiction under Article  227  of
the  Constitution  of  India  is  justified  in  quashing  the  order  dated
14.08.2015 passed by the  Principal  Sessions  Judge,  Kheda  at  Nadiad  in
Criminal  Miscellaneous  Application  No.  545  of  2015  arising  from  the
Sessions Case No. 291 of 2003 instituted for the offences  punishable  under
Sections 147, 148, 149, 364A, 120B, 447,   342  and  506(2)  of  the  Indian
Penal Code (IPC) and further directing the learned Principal Sessions  Judge
to transfer the Sessions Case to any other court of the  learned  Additional
Sessions Judge in the same Sessions Division  from  the  court  of  the  3rd
Additional Sessions Judge, Kheda.

2.    Be it stated at the beginning, the High Court has posed two  questions
– one of which pertains to  exercise  of  power  under  sub-section  (1)  of
Section 408 of the Code of Criminal Procedure, 1973 (CrPC) by  the  Sessions
Judge to transfer a case from one Additional Sessions  Judge  to  any  other
Additional Sessions Judge in his Sessions  Division  after  commencement  of
the trial, and the other, whether  the  case  deserves  to  be  transferred.
Answering the first issue, the High  Court  has  opined  that  the  transfer
petition preferred under Section  408  CrPC  before  the  learned  Principal
Sessions Judge is maintainable. The view expressed  by  the  High  Court  on
this score appears to  be  correct  and  hence,  we  affirm  the  same.  The
principal issue warranting delineation is  the  justification  for  allowing
application for transfer from the court where the trial was pending  to  the
court of another learned Additional Sessions Judge.



3.    The  facts  which  are  essential  to  be  stated  are  that  the  2nd
respondent faced trial for the offences mentioned hereinbefore  in  Sessions
Case No. 291 of 2003.   After examination of 18 prosecution  witnesses,  the
informant preferred an application under Section  319  CrPC  for  arraigning
one Natubhai Maganbhai Edanwala as an accused  in  the  sessions  case.  The
said application was rejected by the learned trial judge  vide  order  dated
18.05.2006. Aggrieved by the aforesaid rejection,  the  informant  preferred
Special Criminal Application No. 1444 of 2006 before the  High  Court  which
vide order dated 02.12.2011 rejected the same.  The said order was  assailed
before this Court in Special Leave Petition (Criminal)  No.  17262  of  2012
which was dismissed on 11.01.2013 with the  observation  that  it  would  be
open to the informant to file an appropriate application under  Section  319
CrPC, if at the end of the examination of all the witnesses,  some  material
is found to connect the person sought to be arraigned as an accused  in  the
alleged crime.  As the factual matrix would  exposit,  the  informant  filed
another application under Section 319 CrPC  after  the  examination  of  the
prosecution witnesses Nos. 19 to 23 and the application  was  allowed.   The
newly arraigned accused preferred Special Criminal Application No.  1731  of
2013 before the High Court challenging the said order, and  the  High  Court
had stayed the same.

4.    As the factual score would undrape on  31.07.2015  when  the  sessions
trial was fixed before the learned 3rd Additional Sessions Judge,  Kheda  at
Nadiad, as alleged, the second respondent was standing in the  parking  area
meant for the four wheelers and at  that  time  he  could  overhear  certain
conversation between the informant and his  son  that  the  trial  would  be
surely taken up for hearing from the next date onwards and all  the  accused
persons would definitely be convicted. As  further  alleged,  the  Presiding
Officer said something regarding the  trial  which  the  accused  correlated
with the conversation he had overheard between the informant  and  his  son.
Under such circumstances, he filed Criminal  Miscellaneous  Application  No.
545 of 2015 under Section 408 CrPC  before  the  Principal  Sessions  Judge,
Kheda for transfer of the sessions case to  any  other  court  in  the  same
Sessions Division.  The learned Principal Sessions  Judges  called  for  the
remarks  of  the  concerned  Presiding  Officer  and,  after   taking   into
consideration the remarks and adverting to the  position  of  law,  rejected
the application. The learned Principal Sessions Judge  while  rejecting  the
application  had  observed  that  once  the  trial  commenced,  he  had   no
jurisdiction to transfer the case in exercise of  the  power  under  Section
408 CrPC. As has been stated earlier, the High Court had unsettled the  said
view and we have no hesitation to say correctly so.

5.    The High Court, as has been indicated earlier,  has  referred  to  the
conversation between the parties and the impression of  the  accused.  After
narrating the same, the High Court has observed that the  accused-petitioner
definitely is in dilemma and whether to term his apprehension as  reasonable
or not, the result  of  the  reaction  of  a  hypersensitive  mind   is  the
question.   Thereafter, the High Court has proceeded  to  observe  that  the
learned trial Judge  had  not  examined  any  witness;  that  all  witnesses
examined so far were  examined  by  his  predecessor  in  office;  that  the
Presiding Officer himself had also not indicated his disinclination to  hear
the matter, and that apart, he had offered quite a stiff resistance  to  the
plea of transfer as the same is revealed from his remarks forwarded  to  the
Principal Sessions Judge.  After so stating, the learned  single  Judge  has
held thus:-

“…I am sure that the present Additional Sessions Judge would have  acted  in
a true sense of a  Judicial  Officer.   But  nevertheless,  to  ensure  that
justice is not only done, but also seems to be  done  and  in  the  peculiar
facts of the case,  I feel that it will  be  appropriate  if  the  Principal
Sessions Judge transfers the case to any other Additional Sessions Judge  in
the same Sessions Division.  I make it abundantly clear  that  the  transfer
shall not be construed as casting any aspersions on the  learned  Additional
Sessions Judge.”

6.    On a careful scrutiny of the order passed by the  High  Court,  it  is
not clear whether the High Court has been convinced  that  the  accused  has
any real  apprehension  or  bias  against  the  trial  judge.  However,  the
observations  of  the  learned  single  Judge,  as  it  seems  to   us,   is
fundamentally based  on  apprehension  and  to  justify  the  same,  he  has
referred to the remarks offered by the learned Additional Sessions Judge  to
the Sessions Judge when explanation was called for. First,  we  shall  refer
to the issue of apprehension.  The apprehension is based  on  some  kind  of
conversation between the informant and  another  that  the  accused  persons
shall be convicted. There is also an assertion that the  trial  judge  is  a
convicting Judge and that is why, the High Court has observed that he is  in
dilemma.
7.    So far as apprehension is concerned, it has  to  be  one  which  would
establish that justice will not be done. In this context, we may  profitably
refer to a passage  from  a                 three-Judge  Bench  decision  in
Gurcharan Dass Chadha v. State of Rajasthan[1], wherein it has been held:-
“… The law with regard to transfer of  cases  is  well-settled.  A  case  is
transferred if there is a reasonable apprehension on the part of a party  to
a case that justice will not be  done.  A  petitioner  is  not  required  to
demonstrate that justice will inevitably fail. He is entitled to a  transfer
if he shows circumstances from which it can be inferred that  he  entertains
an apprehension and that it is reasonable in the circumstances  alleged.  It
is one of the principles of  the  administration  of  justice  that  justice
should not only be done but it should be seen to be done.  However,  a  mere
allegation that there is apprehension that justice will not  be  done  in  a
given case does not suffice. The  Court  has  further  to  see  whether  the
apprehension is reasonable or not. To judge of  the  reasonableness  of  the
apprehension the state  of  the  mind  of  the  person  who  entertains  the
apprehension is no doubt relevant but that  is  not  all.  The  apprehension
must not only  be  entertained  but  must  appear  to  the  Court  to  be  a
reasonable apprehension.”

8.    This Court in Abdul Nazar Madani v. State of T.N.[2] has ruled that:-
“…The apprehension of not getting a fair and impartial inquiry or  trial  is
required to be reasonable and not  imaginary,  based  upon  conjectures  and
surmises. If it appears that the dispensation of  criminal  justice  is  not
possible impartially and objectively and without any bias, before any  court
or even at any place,  the  appropriate  court  may  transfer  the  case  to
another court where it feels that  holding  of  fair  and  proper  trial  is
conducive. No  universal  or  hard-and-fast  rules  can  be  prescribed  for
deciding a transfer petition which has always to be decided on the basis  of
the facts of each case. Convenience of the parties including  the  witnesses
to be produced at the trial is also a relevant  consideration  for  deciding
the transfer petition. The convenience of the parties does  not  necessarily
mean the convenience of the petitioners alone who approached  the  court  on
misconceived notions  of  apprehension.  Convenience  for  the  purposes  of
transfer means the  convenience  of  the  prosecution,  other  accused,  the
witnesses and the larger interest of the society.”

9.    In Captain Amarinder Singh  v.  Parkash  Singh  Badal  and  others[3],
while dealing with an application  for  transfer  petition  preferred  under
Section 406 CrPC, a                  three-Judge Bench has opined  that  for
transfer of a criminal case, there must be a reasonable apprehension on  the
part of the party to a case that justice will not be done. It has also  been
observed therein that mere an allegation that there is an apprehension  that
justice will not be done in a given case alone  does  not  suffice.   It  is
also required on the part of the  Court  to  see  whether  the  apprehension
alleged is reasonable  or  not,  for  the  apprehension  must  not  only  be
entertained but must appear to the Court to be  a  reasonable  apprehension.
In the said context, the Court has held thus:-
“19. Assurance of a fair trial is the first imperative of  the  dispensation
of justice. The purpose of the  criminal  trial  is  to  dispense  fair  and
impartial justice uninfluenced by  extraneous  considerations.  When  it  is
shown that the public confidence  in  the  fairness  of  a  trial  would  be
seriously undermined, the aggrieved party can seek the transfer  of  a  case
within the State under  Section  407  and  anywhere  in  the  country  under
Section 406 CrPC.

20. However, the apprehension of not getting a fair  and  impartial  inquiry
or trial is required to be reasonable  and  not  imaginary.  Free  and  fair
trial is sine qua non of Article 21 of the  Constitution.  If  the  criminal
trial is not free and fair and if it is biased, judicial  fairness  and  the
criminal justice system would be at stake, shaking  the  confidence  of  the
public in the system. The apprehension must appear to  the  court  to  be  a
reasonable one.”

10.   In Lalu Prasad alias Lalu Prasad Yadav v. State of  Jharkhand[4],  the
Court, repelling the submission that because some of the  distantly  related
members were in the midst of the Chief Minister, opined that from  the  said
fact it cannot be presumed that the Presiding Judge would  conclude  against
the  appellant.   From  the  said  decision,  we  think  it  appropriate  to
reproduce the following passage:-
“Independence of judiciary is the basic  feature  of  the  Constitution.  It
demands that a Judge who presides over the trial, the Public Prosecutor  who
presents the case on behalf of the State and  the  lawyer  vis-à-vis  amicus
curiae who represents the accused must  work  together  in  harmony  in  the
public interest of justice uninfluenced by the personality  of  the  accused
or those managing the affairs of the State.  They  must  ensure  that  their
working  does  not  lead  to  creation  of  conflict  between  justice   and
jurisprudence. A person whether  he  is  a  judicial  officer  or  a  Public
Prosecutor or a lawyer  defending  the  accused  should  always  uphold  the
dignity of their high office with a full sense  of  responsibility  and  see
that its value  in  no  circumstance  gets  devalued.  The  public  interest
demands that the trial  should  be  conducted  in  a  fair  manner  and  the
administration of justice would be fair and independent.”



11.   The aforesaid passage,  as  we  perceive,  clearly  lays  emphasis  on
sustenance of majesty of law by all  concerned.   Seeking  transfer  at  the
drop of a hat is inconceivable.   An order of transfer is not to  be  passed
as a matter of routine or merely because an interested party  has  expressed
some apprehension about proper conduct of the trial.  The power  has  to  be
exercised  cautiously  and  in  exceptional  situations,  where  it  becomes
necessary to do so to provide credibility to the trial.  There has to  be  a
real apprehension that there would be miscarriage of justice. [See  :  Nahar
Singh Yadav and another v. Union of India and others[5]].
12.   In the instant case, we are disposed to think that  apprehension  that
has been stated is absolutely mercurial and cannot remotely be stated to  be
reasonable.  The learned single Judge has taken an exception to the  remarks
given by the learned trial judge and also opined  about  non-examination  of
any witness by him.  As far as the first aspect is concerned,  no  exception
can  be  taken  to  it.  The  learned  Sessions  Judge,  while  hearing  the
application for transfer of the case, called  for  remarks  of  the  learned
trial judge, and in such a situation, he is required to  give  a  reply  and
that he has done.  He is not expected to  accept  the  allegations  made  as
regards his conduct and more so while nothing has been brought on record  to
substantiate the same. The High Court could not have deduced that he  should
have declined to conduct the trial.  This kind of  observation  is  absolute
impermissible in law, for there is no acceptable reason on the part  of  the
learned trial judge to show his disinclination. Solely  because  an  accused
has filed an application for transfer, he is not  required  to  express  his
disinclination. He is required under law to do his duty. He has  to  perform
his duty and not to succumb to the pressure put by  the  accused  by  making
callous allegations. He is not expected to show unnecessary  sensitivity  to
such allegations and recuse himself from the  case.   If  this  can  be  the
foundation to transfer a case, it will bring  anarchy  in  the  adjudicatory
process.  The  unscrupulous  litigants  will  indulge  themselves  in  court
haunting.  If they are allowed such room, they  do  not  have  to  face  the
trial before a court in which they do not feel comfortable.  The High  Court
has gravely erred in this regard.  So far as  the  non-examination   of  the
witnesses is concerned, as the factual score  would  uncurtain,  the  matter
had travelled to the High Court  in  revision  assailing  the  order  passed
under Section 319 CrPC.   Be  that  as  it  may,  the  High  Court  has  not
adverted to the issue who was seeking adjournment and what was the  role  of
the learned trial judge.  Grant of adjournment could have  been  dealt  with
by the High Court in a different manner.  It has to be borne in mind that  a
judge who discharges his duty is bound to commit errors. The  same  have  to
be rectified. The accused has never moved the  superior  court  seeking  its
intervention for speedy trial. The High Court has innovated a  new  kind  of
approach to transfer the case.  The High Court should have kept in view  the
principles stated in K.P. Tiwari v.  State  of  M.P.[6]  which  are  to  the
following effect:-

“… It has also to be remembered that  the  lower  judicial  officers  mostly
work under a charged atmosphere and are  constantly  under  a  psychological
pressure with all the contestants and their lawyers  almost  breathing  down
their necks—more correctly up to  their  nostrils.  They  do  not  have  the
benefit of a detached atmosphere of the higher courts to  think  coolly  and
decide patiently. Every error,  however  gross  it  may  look,  should  not,
therefore, be attributed to improper motive.”

13.   Thus analysed, we are unable to sustain the order of  transfer  passed
by the High Court.  Consequently, the appeals  are  allowed  in  part.   The
finding recorded as regards the jurisdiction of the learned  Sessions  Judge
is sustained, and as far as the direction to the  Principal  Sessions  Judge
to transfer the case from the 3rd Additional Sessions Judge  to  some  other
court being vulnerable and wholly unsustainable is set aside.   The  learned
trial judge shall proceed with the trial and dispose of the same within  six
months.

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



                                         .................................J.
                                        [Prafulla C. Pant]
NEW DELHI
JANUARY 8, 2016


-----------------------
[1]    AIR 1966 SC 1418
[2]    (2000) 6 SCC 204
[3]    (2009) 6 SCC 260
[4]    (2013) 8 SCC 593
[5]    (2011) 1 SCC 307
[6]    1994 Supp. (1) SCC 540

-----------------------
14

Review - when there is an error apparent on the face of record, it should be corrected in review = whether there is any reservation in the promotions from one officer grade/scale to higher grade/scale, when such promotions are to be made on selection basis, i.e. on merits. The position taken by the appellant banks was that there is no rule of reservation for promotion in Class-A (Class-I) to the post/scales having basic salary of more than ?5,700 per month and OM dated August 13, 1997 at best provides only a concession in the manner officers belonging to SC/ST category are to be considered for promotion.=an act of the Court should not prejudice anyone and the maxim actus curiae neminem gravabit gets squarely applicable...”=We find adequate force in the aforesaid submission of the learned Attorney General. We have already reproduced those paragraphs of the judgment, i.e. paragraph Nos. 26 to 32, wherein after interpreting OM dated August 13, 1997, it is categorically held that this OM does not provide for any reservation. This is so stated in the opening lines of paragraph 34 as well by emphasizing that there is no reservation in promotion by selection within Group-A posts, which carry an ultimate salary of ?5,700 per month and it is only concession that applies. This conclusion is followed with the observation that contention of the banks in this behalf has been accepted. In spite thereof, in the very next line of paragraph 34, it is observed: “34... Significantly, what follows is that reservation is provided in promotion by selection qua those posts which carry an ultimate salary of less than ?5,700 per month (pre-revised).” It is clearly an error on the face of the record inasmuch as no such consequence follows. In fact, the aforesaid quoted portion is directly in conflict with not only the earlier portion of paragraph 34, but the entire conclusion on the issue on which there is a detailed discussion from paragraph Nos. 26 to 32 and even in earlier paragraphs of the judgment. It is this error, which is apparent on the face of the record, viz. the reservation is provided in promotion by selection respect of posts carrying salary of less than ?5,700 per month, that has led to further error that such reservation in the matter of promotion is applicable from Scale I upward up to Scale VI. What constitutes an error apparent on the face of the record = Once we find an error apparent on the face of the record and to correct the said error, we have to necessarily allow these review petitions.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                   REVIEW PETITION (CIVIL) NO. 891 OF 2015
                                     IN
                        CIVIL APPEAL NO. 209 OF 2015

|CHAIRMAN & MANAGING DIRECTOR                     |                      |
|CENTRAL BANK OF INDIA & ORS.                     |…..PETITIONERS        |
|VERSUS                                           |                      |
|CENTRAL BANK OF INDIA SC/ST EMPLOYEES            |…..RESPONDENTS        |
|WELFARE ASSOCIATION & ORS.                       |                      |

                                   W I T H
                   REVIEW PETITION (CIVIL) NO. 837 OF 2015
                                     IN
                        CIVIL APPEAL NO. 213 OF 2015

                                   W I T H
                   REVIEW PETITION (CIVIL) NO. 892 OF 2015
                                     IN
                        CIVIL APPEAL NO. 211 OF 2015

                                   W I T H
                   REVIEW PETITION (CIVIL) NO. 903 OF 2015
                                     IN
                        CIVIL APPEAL NO. 210 OF 2015

                                   W I T H
                  REVIEW PETITION (CIVIL) NO. 1104 OF 2015
                                     IN
                        CIVIL APPEAL NO. 212 OF 2015



                                    A N D
                  REVIEW PETITION (CIVIL) NO. 2131 OF 2015
                                     IN
                        CIVIL APPEAL NO. 209 OF 2015


                               J U D G M E N T


A.K. SIKRI, J.
                 By our judgment dated January  09,  2015,  we  had  decided
batch of appeals which were preferred by the  Union  of  India  as  well  as
certain banks.  In these appeals, the validity of the judgment of  the  High
Court of Madras was questioned which held that in the matter  of  promotions
in the officer grades, there shall be reservation provided for the  officers
belonging to the Scheduled Caste (SC) and Scheduled  Tribe  (ST)  categories
working in these banks.  This decision of the High Court was  predicated  on
the interpretation to the provisions of Office Memorandum (OM) dated  August
13, 1997  issued  by  the  Central  Government,  along  with  certain  other
connected Office Memoranda.  It was concluded by the  High  Court  that  the
aforesaid OM dated August 13,  1997  provides  for  such  a  reservation  in
favour of the SC/ST employees.  The plea of the  appellant  banks  was  that
the said OM does not make any  provisions  for  reservation  in  respect  of
SC/ST employees.

The question, therefore, that needed determination by this Court was  as  to
whether there  is  any  reservation  in  the  promotions  from  one  officer
grade/scale to higher grade/scale, when such promotions are to  be  made  on
selection basis, i.e. on merits.  The position taken by the appellant  banks
was that there is no rule of reservation for promotion in Class-A  (Class-I)
to the post/scales having basic salary of more than ?5,700 per month and  OM
dated August 13, 1997 at best provides  only  a  concession  in  the  manner
officers belonging to SC/ST category are to be considered for promotion.

After hearing the counsel for the parties, judgment dated January  09,  2015
was rendered.  Provisions of OM dated August  13,  1997  and  other  related
Office Memoranda were considered by  this  Court  in  that  judgment.   This
Court, after interpreting the said OM, came to the conclusion that  this  OM
did not provide for any reservation.  Operative portion of the  judgment  in
arriving at the aforesaid conclusion reads as under:
“26.  While considering  this  question,  we  have  to  keep  in  mind  that
reservation policy of the Central Government is applicable to the  appellant
Banks.  It is the common case of both the  parties.   In  fact,  as  already
noted above, there is a specific provision to this effect in  the  promotion
policies framed by the appellant Banks.

27)  Next thing which is to be kept in mind is  the  two  office  memoranda,
one dated 1.11.1990 and the other dated 13.8.1997, which are referred to  by
the counsel for the parties.  We have already reproduced the  aforesaid  two
office  memoranda.   Insofar  as,  Office  Memorandum  dated  1.11.1990   is
concerned, a bare reading of this provision would reflect the following  two
aspects:

(a)   In promotion by selection within Class-I  (Group-A)  post,  the  SC/ST
candidates are to be given 'concession'.

(b)   This concession is available to those SC/ST employees who  are  senior
enough in the zone of consideration for promotion so as  to  be  within  the
number of vacancies for which select list has to be drawn up.

            Thus, first requirement is that such SC/ST candidates  who  come
within the zone of consideration for  promotion  are  senior  enough  to  be
within the number of vacancies.  Once they come within  the  aforesaid  zone
of consideration, they have to be included in the list,  provided  they  are
not considered unfit for promotion.  It clearly follows from the above  that
once they come under the zone of consideration for promotion  so  as  to  be
within the number of vacancies for which select list has  to  be  drawn  up,
for such SC/ST employees the only embargo to deprive them  of  promotion  is
when they are found unfit for promotion.   For  other  officers  in  general
category, depending upon the rule of promotion, there may be  much  stricter
criteria based on comparative merit or selection by  merit,  etc.   However,
in case of such senior enough SC/ST candidates, the criteria appears  to  be
seniority, subject to fitness.

(c)   This OM specifically clears the doubt that the aforesaid provision  is
only a concession  and  not  reservation  in  favour  of  SC/ST  candidates,
inasmuch as para 3 of the OM states that “It is  hereby  clarified  that  in
promotion by selection within Group-A post, which carry ultimate  salary  of
? 5,700/- per month, there is no reservation”.  It is clear from  the  above
that insofar as Office Memorandum dated 1.11.1990 is  concerned,  there  was
no  provision  for  reservation  made  in  favour  of  SC/ST  candidates  in
promotion by selection within Group-A posts carrying an ultimate  salary  of
?5,700 per month.

28)  No doubt, this Office Memorandum was issued in the year 1990,  that  is
much before amendment in Article 16 of the Constitution, which  was  carried
out in the year 1995 by inserting Clause 4A.  However,  as  already  pointed
out above, Clause 4A is an enabling provision which empowers  the  State  to
make reservations in the matter of promotions as well as in favour of  SC/ST
employees. There was no such provision  till  1.11.1990  in  the  matter  of
promotion by selection within Group-A post which carry  an  ultimate  salary
of ?5,700/- per month.

29)  Having understood this, we come to Office  Memorandum  dated  13.8.1997
to  find  out  as  to  whether  this  Memorandum  makes  any  provision  for
reservations in the matter  of  promotion  in  favour  of  SC/ST  employees,
inasmuch as no  other  Office  Memorandum  or  Circular  or  Rule,  etc.  is
produced on record for this purpose.

30)  We have already noted above that a nine Judge Bench  decision  of  this
Court in Indra Sawhney (supra) held that Clause 4 of  Article  16  does  not
cover the cases of promotion, meaning thereby, as per  the  said  clause  no
reservation in favour of SC/ST  persons  in  the  matter  of  promotions  is
permissible.  It is to  nullify  the  effect  of  this  dicta  in  the  said
judgment that Clause  4A  was  inserted  in  Article  16  by  Constitution's
Seventy-Seventh Amendment with effect from 17-06-1995.  However, it is  also
a matter of record that in Indra Sawhney's  case  (supra),  this  Court  had
also clarified that reservation for SC/STs in promotion would  continue  for
a period of five years from 16-11-1992.  What it meant was that if there  is
a  provision  of   reservation   made   in   the   matter   of   promotions,
notwithstanding the dicta in the said case that such a  reservation  is  not
permissible, those provisions were allowed to continue for a period of  five
years from  16-11-1992.   Thereafter,  before  the  expiry  of  five  years,
constitutional provision was incorporated  in  the  form  of  Clause  4A  by
making provision for reservation  in  the  matter  of  promotions  as  well.
These facts are taken note of in first two paras of Office Memorandum  dated
13-08-1997.  Thereafter, in the 3rd para  of  the  said  Memorandum,  it  is
provided:

“3.  In pursuance of Article 16(4A), it has been  decided  to  continue  the
Reservation in promotion as at present, for the  Scheduled  Castes  and  the
Scheduled Tribes in the services/posts under the Central  Government  beyond
15.11.1997 till such time as the representation of each  of  the  above  two
categories in each cadre reaches the prescribed percentages  of  reservation
whereafter, the reservation in promotion  shall  continue  to  maintain  the
representation  to  the  extent  of  the  prescribed  percentages  for   the
respective categories.”

31)  What is decided is to continue the reservation in promotion, which  was
prevalent at that time, for the SC/ST employees, which was  to  continue  in
terms of the judgment of this Court in Indra  Sawhney  (supra)  till  15-11-
1997, even beyond 15-11-1997, till such time as the representation  of  each
of  the  above  two  categories  in  each  cadre  reaches   the   prescribed
percentages of reservation whereof.  It is, thus, crystal clear from a  bare
reading of this para that the existing provision relating to reservation  in
promotion was allowed to continue beyond 15-11-1997.  Thus, this  Memorandum
did not make any new provision for reservation in  promotion  in  favour  of
SC/ST employees.

32) We have already noticed above that in matters of promotion within Group-
A posts, which carry an ultimate salary of ?5,700/- per month, there was  no
provision for any reservation.  On a conjoint reading of  these  two  Office
Memorandums, in the absence of any other provision or Rule  evidencing  such
a reservation in the matter of promotions, it cannot be said that there  was
reservation in promotion within Group-A posts upto the  ultimate  salary  of
?5,700/- per month.  The High Court in the impugned  judgment  has  gone  by
the lofty ideals enshrined in Articles 15 and  16  of  the  Constitution  as
well as the fact that in these Banks there is no adequate representation  of
SC/ST category of officers in Group-IV and above.  That may be so.   It  can
only provide justification for making a provision of this nature.   However,
in the absence of such a provision, same cannot be  read  by  overstretching
the language of Office Memorandum dated 13-08-1997.  It is for the State  to
take stock of the ground realities and take a decision as to whether  it  is
necessary to make provision for reservation in promotions to  the  aforesaid
post as well.”


As  pointed  out  above,  since  the  main  issue  that   had   arisen   for
consideration stood answered in favour of the  appellant  banks,  in  normal
course, the appeals should have been allowed reversing  the  judgment  dated
December 09, 2009 rendered by the High Court.  However,  during  the  course
of the arguments, the respondent employees had produced  copy  of  OM  dated
November 08, 2004 issued by the Department of Enterprises, as per which  the
salary limit of ?5,700 mentioned in  the  OM  dated  August  13,  1997,  was
treated as equivalent to ?18,300 on the implementation of the Fifth  Central
Pay Commission Report in respect of those public sector  undertakings  which
were following the Central Pay pattern and in  the  case  of  public  sector
undertakings  following  Industrial  Dearness   Allowance   (IDA)   pattern,
monetary ceiling was fixed as ?20,800.  On that basis, this Court  proceeded
further to discuss that aspect with the observation that the High Court  had
failed to consider the same.  Discussing this aspect, this Court  held  that
even when there was no policy of reservation  for  the  post  carrying  pay-
scale of more than ?5,700 per month, the reservation was  there  in  respect
of the post carrying basic pay  of  upto  ?5,700  per  month  and  with  the
implementation of the Fifth Central Pay Commission Report, it  would  follow
that such reservation was applicable  to  the  post  carrying  pay-scale  of
?18,300.  On that basis, it was held that since pay-scale of the posts  upto
Scale VI was ?18,300, insofar as promotions from Scale I to Scale II,  Scale
II to Scale III, Scale III to Scale IV, Scale IV to Scale V and Scale  V  to
Scale VI  are  concerned,  reservation  is  to  be  provided.   It  is  this
direction/portion of the judgment in respect of  which  the  instant  review
petitions are filed.  Thus, it would be  apt  to  reproduce  the  discussion
touching upon this aspect in the judgment.  The same reads as under:
“33.  Having  said  so,  one  other  aspect  which  has  to  be  necessarily
addressed to at this stage calls for our attention.  This aspect,  which  we
are going to point out now, has been totally glossed  over  by  the  learned
Single Judge as well as the Division  Bench  of  the  High  Court  in  their
respective judgments.

34.  It is provided in Office  Memorandum  dated  01-11-1990,  and  we  have
repeatedly stated above, that  there  is  no  reservation  in  promotion  by
selection within only those Group-A posts which carry an ultimate salary  of
?5,700/- per month.  In such cases, it is only concession that applies.   We
have accepted the contention of the appellant Banks in this behalf,  as  per
the discussion contained hereinabove.  Significantly, what follows  is  that
reservation is provided in promotion by  selection  qua  those  posts  which
carry an ultimate salary of less than ?5,700/- per month (pre-revised).

35.  The Department of Public Enterprises had issued  an  Office  Memorandum
dated 08-11-2004 as to the  salary  limit  of  ?5,700/-  mentioned  for  the
purposes of reservation as ?18,300/- (5th Central  Pay  Commission)  and  in
the  case  of  Public  Sector  Undertakings  who  are  following  Industrial
Dearness  Allowance  (IDA)  pattern,  the  monetary  ceiling  was  fixed  as
?20,800/- (from 01-01-1996, i.e. 5th Central Pay Commission).  The said  pay
ceiling is achieved in the appellant Banks  only  when  an  officer  reaches
Scale-VII.  As a fortiorari, the policy of no reservation in the  matter  of
promotion is applicable only  from  Scale-VII  and  above.   It,  therefore,
clearly follows that insofar as promotion from Scale-I to  Scale-II,  Scale-
II to Scale-III, Scale-III to Scale-IV,  Scale-IV  to  Scale-V,  Scale-V  to
Scale-VI are concerned,  reservation  is  to  be  provided.   The  appellant
Banks, therefore, cannot take umbrage under  the  aforesaid  Memorandum  and
deny reservation in favour of SC/ST employees while carrying out  promotions
upto to Scale-VI.

36.  Upshot of the aforesaid discussion would  be  to  allow  these  appeals
party.  While setting aside the impugned judgment of the High Court  to  the
extent it holds that Office Memorandum dated 13-08-1997  makes  a  provision
for reservation, it is clarified that at present there is no  provision  for
reservation in promotion by selection only in respect of those  posts  which
carry an ultimate salary of ?5,700/- per month (revised to ?18,300/- by  5th
Central Pay Commission and ?20,800/- per month in respect  of  those  Public
Sector Undertakings following  IDA  pattern).   Qua  appellant  Banks,  that
would be in respect  of  Scale-VII  and  above.   Therefore,  to  carry  out
promotions from Scale-I upwards upto Scale-VI, reservation in  promotion  in
favour of SC/ST employees has to be given.  It  would  have  the  effect  of
allowing the writ petitions filed  by  the  respondents/unions  partly  with
directions to the appellant Banks to make provision for  reservations  while
carrying out promotions from Scale-I to to Scale-II and upward  upto  Scale-
VI.

                                                        (emphasis supplied)”

Review petitions are filed by the Union of India as well  as  certain  banks
which were parties to the appeals.  In these review petitions,  applications
for  intervention/impleadment  are  filed  by  Indian   Banks'   Association
supporting the plea taken in the review petitions.  On the other  hand,  All
India  Central  Bank  SC/ST/OBC  Employees  Association-Kolkata,   Bank   of
Maharashtra SC/ST &  OBC  Employees'  Association-Pune  and  State  Bank  of
Travancore SCs & STs Welfare Association have also  filed  applications  for
intervention/impleadment with intent to oppose the review petitions.

Notice was issued to the respondent-employees/associations in  these  review
petitions.   They  have  filed  their  counter  affidavits  to  the   review
petitions.  We have heard counsel for all the parties  before  us.   It  was
also pleaded by the counsel on either side that since the  issue  raised  in
the review petitions has bearing on  the  merits  of  the  case,  the  issue
raised itself be finally decided.

Mr. Mukul Rohatgi, learned Attorney  General  appearing  for  the  Union  of
India, submitted that a fundamental error, which was an  error  apparent  on
the face of the record, had  crept  in  in  paragraph  34  of  the  judgment
wherein it was  observed  that  reservation  is  provided  in  promotion  by
selection qua those posts which  carry  an  ultimate  salary  of  less  than
?5,700 (pre-revised).  He pointed out that in the  earlier  portion  of  the
same paragraph (which is reproduced and highlighted above), this  Court  had
reiterated, after detailed discussion,  that  there  is  no  reservation  in
promotion by selection in Group-A posts which carry an  ultimate  salary  of
?5,700 per month and in such cases it is only the concession  that  applies.
He further submitted that in such a situation, OM dated  November  08,  2005
issued by the Department of Enterprises, that too at  the  fag  end  of  the
hearing of the appeals, had no relevance at all. He further  submitted  that
promotions were only up to Scale VI  in  these  banks  as  the  hierarchical
structure would reveal that Scale VII and above were  in  fact  Board  level
posts which are filled up by the Government  and  not  by  the  Departmental
Promotion Committee of the concerned banks.  In this manner, he argued  that
in spite of deciding the main issue against the respondents, because of  the
aforesaid error in the judgment, the said  benefit  was  still  bestowed  by
giving reservations to the officers belonging to SC/ST category  from  Scale
I to Scale VI.  He further demonstrated that  in  these  banks,  there  were
four categories  of  employees,  namely,  sub-staff  (Class  IV),  clerical,
officers and Board level posts.  The  promotions  were  provided  from  sub-
staff to clerical as well  as  from  clerical  to  junior  management  grade
(Scale-I).  However, there was no further  promotion  from  Scale-I  upward.
The learned Attorney General further argued that  the  entire  case  of  the
respondent employees was based on OM dated August 13, 1997 and relying  upon
the same, the respondent employees had argued  that  this  OM  provides  for
reservation.   However,  this  precise  contention  of  the  employees   was
specifically turned down and repelled by this  Court   by  interpreting  the
said OM to mean that it does not  provide  for  any  reservation,  but  only
gives certain concessions to the employees  belonging  to  SC/ST  categories
while considering their cases for promotion.  As a consequence,  no  further
discussion was required.

We find adequate force in the aforesaid submission of the  learned  Attorney
General.  We have already reproduced those paragraphs of the judgment,  i.e.
paragraph Nos. 26 to 32, wherein after  interpreting  OM  dated  August  13,
1997, it is categorically held  that  this  OM  does  not  provide  for  any
reservation.  This is so stated in the opening  lines  of  paragraph  34  as
well by emphasizing that there is no reservation in promotion  by  selection
within Group-A posts, which carry an ultimate salary  of  ?5,700  per  month
and it is only concession that applies.  This conclusion  is  followed  with
the observation that contention  of  the  banks  in  this  behalf  has  been
accepted.  In spite thereof, in the very next line of paragraph  34,  it  is
observed:
“34... Significantly, what  follows  is  that  reservation  is  provided  in
promotion by selection qua those posts which carry  an  ultimate  salary  of
less than ?5,700 per month (pre-revised).”

It is clearly an error on the  face  of  the  record  inasmuch  as  no  such
consequence follows.  In fact, the aforesaid quoted portion is  directly  in
conflict with not only the earlier portion of paragraph 34, but  the  entire
conclusion on the issue  on  which  there  is  a  detailed  discussion  from
paragraph Nos. 26 to 32 and even in earlier paragraphs of the judgment.   It
is this error, which is apparent  on  the  face  of  the  record,  viz.  the
reservation is provided in promotion by selection respect of posts  carrying
salary of less than ?5,700 per month, that has led  to  further  error  that
such reservation in the matter of  promotion  is  applicable  from  Scale  I
upward up to Scale VI.  What constitutes an error apparent on  the  face  of
the record is explained in State of Rajasthan & Anr. v.  Surendra  Mohnot  &
Ors.[1], with the aid of an earlier judgment, in the following manner:
“25.  To appreciate what constitutes an error apparent on the  face  of  the
record, the observations of the Court in Satyanarayan Laxminarayan Hegde  v.
Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137, are useful: (AIR p.137)

“An error which has to be established by a long-drawn process  of  reasoning
on points where there may conceivably be two opinions can hardly be said  to
be an error apparent on the face of the record.  Where an alleged  error  is
far  from  self-evident  and  if  it  can  be  established,  it  has  to  be
established, by lengthy and complicated arguments, such an error  cannot  be
cured by a writ of certiorari according to the rule governing the powers  of
the superior court to issue such a writ.”

26.  In the case  at  hand,  as  the  factual  score  has  uncurtained,  the
application for review did not require a long-drawn  process  of  reasoning.
It did not require any advertence on merits which is in the province of  the
appellate court.  Frankly speaking it was a manifest and palpable error.   A
wrong authority which had nothing to do with the lis was cited and that  was
conceded to.  An already existing binding precedent was ignored.  At a  mere
glance it would have been clear to the Writ  Court  that  the  decision  was
rendered on the basis of a wrong authority.   The  error  was  self-evident.
When such self-evident errors come to the notice of the Court and  they  are
not rectified in exercise of review jurisdiction or jurisdiction  of  recall
which  is  a  facet  of  plenary  jurisdiction  under  Article  226  of  the
Constitution, a grave miscarriage of justice occurs...”


The Court also made the following pertinent observations:
“28.  We have already stated the legal position with regard to legal  impact
as regards the concession pertaining to the position in  law.   That  apart,
we think that an act of the Court should not prejudice anyone and the  maxim
actus curiae neminem gravabit gets squarely applicable...”

Learned counsel appearing for the respondent  employees  could  not  dispute
the aforesaid error having been occurred.  It is for this reason,  the  main
argument on the part of the counsel for the respondents was that insofar  as
Union of India is concerned, review petition was not maintainable as it  had
not challenged the judgment of the High Court.  It was also argued that  the
review petition filed by banks was against the public policy  as  there  was
no adequate representation of SC/ST employees in the  higher  posts  and  by
not providing such a reservation, the Government was  failing  to  subscribe
to the Constitutional spirit behind reservation  provisions.   Counsel  also
endeavoured to argue that the appeals which were filed against the  judgment
of the High Court themselves were not maintainable as a circular was  issued
by the Union of India impressing upon the banks to follow  the  judgment  of
the High Court.

The aforesaid arguments of learned  counsel  for  the  respondent  employees
fail to cut any ice as there are not germane to the  issue  with  which  the
Court is concerned with in these  review  petitions.   Even  if  the  review
petition filed by the Union of India is  to  be  discarded,  that  would  be
immaterial inasmuch as the banks,  which  were  the  appellants,  have  also
filed the review petition on the same grounds and, therefore, this Court  is
necessarily called upon to decide the  issue  at  hand.   Further,  when  an
error is pointed out and the  Court  also  finds  that  there  is  an  error
apparent on the face of the record, it would not shy  away  from  correcting
that error.

We would be candid in our remarks  that  once  an  error  is  found  in  the
order/judgment, which is apparent on the face of record and meets  the  test
of review jurisdiction as laid down in Order XLVII Rule (1) of  the  Supreme
Court Rules, 2013 read with Order XLVII  Rule  (1)  of  the  Code  of  Civil
Procedure, 1908, there is no reason to feel hesitant  in  accepting  such  a
mistake and rectify the  same.   In  fact,  the  reason  for  such  a  frank
admission is to ensure that this mind of patent error  from  the  record  is
removed which led to a wrong  conclusion  and  consequently  wrong  is  also
remedied.    For adopting such a course of action, the Court  is  guided  by
the doctrine of ex debito justitiae as well as the fundamental principal  of
the administration of justice  that  no  one  should  suffer  because  of  a
mistake of the Court.  These principles are  discussed  elaborately,  though
in a different context, in A.R. Antulay v. R.S. Nayak[2].

We would also like to reproduce the following observations in S. Nagaraj  v.
State of Karnataka[3]:

“18.  Justice is a virtue which transcends all barriers.  Neither the  rules
of procedure nor technicalities of law can stand in its way.  The  order  of
the Court should not be prejudicial to anyone.  Rule  of  stare  decisis  is
adhered for consistency but it is not as inflexible  in  Administrative  Law
as in Public Law.  Even the law bends before  justice.   Entire  concept  of
writ jurisdiction exercised by the higher courts is founded  on  equity  and
fairness.  If the Court finds that the order was passed under a mistake  and
it  would  not  have  exercised  the  jurisdiction  but  for  the  erroneous
assumption which in fact did not exist and its perpetration shall result  in
miscarriage of justice then it cannot on any  principle  be  precluded  from
rectifying the error.  Mistake is accepted as  valid  reason  to  recall  an
order.   Difference  lies  in  the  nature   of   mistake   and   scope   of
rectification, depending on if it is of fact or  law.   But  the  root  from
which the power flows is the anxiety  to  avoid  injustice.   It  is  either
statutory or inherent.  The latter is available where the mistake is of  the
Court.  In Administrative Law the  scope  is  still  wider.   Technicalities
apart  if  the  Court  is  satisfied  of  the  injustice  then  it  is   its
constitutional and legal obligation to set it right by recalling its  order.
 Here as explained, the Bench of which one of us (Sahai, J.)  was  a  member
did commit an error in placing all the stipendiary graduates  in  the  scale
of First Division Assistants due to State's failure to bring  correct  facts
on record.  But that  obviously  cannot  stand  in  the  way  of  the  Court
correcting its mistake.  Such inequitable consequences as have surfaced  now
due to vague affidavit filed by the State cannot be permitted to continue.”

The argument of public policy pressed by the respondents  is  of  no  avail.
We are conscious of the fervent plea  raised  by  the  respondent  employees
that employees belonging to SC/ST  category  should  be  made  eligible  for
promotion by providing the reservation in the promotional posts as well,  as
their representation is abysmally minimal.  However, whether  there  is  any
such justification in the demand or not is for the  State  to  consider  and
make a provision in this behalf.  This  was  so  recorded  in  the  judgment
itself in the following manner:

“24.  In the first instance, we make it  clear  that  there  is  no  dispute
about the constitutional position envisaged in Articles 15 and  16,  insofar
as these provisions empower the State to take affirmative action  in  favour
of SC/ST category persons by making reservations for them in the  employment
in the Union or the State (or for  that  matter,  public  sector/authorities
which are treated as State under  Article  12  of  the  Constitution).   The
laudable objective underlying these provisions is also to be  kept  in  mind
while undertaking any exercise pertaining to the issues  touching  upon  the
reservation of such SC/ST employees.  Further, such a  reservation  can  not
only be made at the entry  level  but  is  permissible  in  the  matters  of
promotions as wells.  At the same time, it is also to be borne in mind  that
Clauses 4 and 4A of Article 16 of the Constitution  are  only  the  enabling
provisions which permit the State  to  make  provision  for  reservation  of
these category of persons.  Insofar as making of provisions for  reservation
in matters of promotion to any class or classes of post is  concerned,  such
a provision can be made in favour of SC/ST category  employees  if,  in  the
opinion of the State, they are not adequately represented in services  under
the State.  Thus, no doubt, power lies with the State to make  a  provision,
but, at the same time, courts cannot issue any  mandamus  to  the  State  to
necessarily make such a provision.  It is for the State to act, in  a  given
situation, and to take such an  affirmative  action.   Of  course,  whenever
there exists such a provision for reservation in the matters of  recruitment
or the promotion, it would bestow an enforceable right in favour of  persons
belonging to SC/ST category and on failure on the part of any  authority  to
reserve the posts, while making selections/promotions, the beneficiaries  of
these provisions can approach the Court to get their rights enforced.   What
is to be highlighted is that existence of provision for reservation  in  the
matter of selection or promotion, as the case may be, is the  sine  qua  non
for seeking mandamus as it is only when such a  provision  is  made  by  the
State,  a  right  shall  accrue  in  favour  of  SC/ST  candidates  and  not
otherwise.”



Once we find an error apparent on the face of the record and to correct  the
said error, we have to necessarily allow these review petitions.


In view of the foregoing, the  review  petitions  are  allowed  by  deleting
paragraph Nos. 33 to  36  of  the  judgment  and  the  directions  contained
therein, as well as the directions contained in paragraph No. 37.   Instead,
after paragraph No. 32, following paragraph shall be inserted  and  numbered
as 33, and paragraph No. 38 should be re-numbered as 34:

“33.  Result of the aforesaid discussion would be  to  allow  these  appeals
and set aside the judgment of the High Court.  While doing so, we  reiterate
that it is for the State to take stock of the ground realities  and  take  a
decision as to whether it is necessary to make a provision  for  reservation
in promotions from Scale I to Scale II and upward, and if so,  up  to  which
post.  The contempt petition also stands disposed of.


34.  In the peculiar facts of this case, we leave the parties to bear  their
own costs.”


All the interlocutory applications for impleadment/intervention  also  stand
disposed of.


Before we part with, we would like to observe  that  we  have  mentioned  in
para 15, which was also recorded in the main judgment,  that  the  grievance
of the employees belonging to SC/ST category is  that  there  is  negligible
representation of employees belonging to their community  in  the  officers'
category at all levels.  Keeping in view the statistical figures which  have
been placed on record showing their representation in officers'  scales,  it
would be open to the concerned authority, namely, the State  and  the  Banks
to consider whether their demand is justified and it is feasible to  provide
reservation to SC/ST category persons in the  matter  of  promotion  in  the
officers' category and if so, upto which scale/level.

                             .............................................J.
                                                            (J. CHELAMESWAR)



                             .............................................J.
                                                                (A.K. SIKRI)

NEW DELHI;
JANUARY 08, 2016.
-----------------------
[1]   (2014) 14 SCC 77
[2]   (1988) 2 SCC 602
[3]   1993 Supp (4) SCC 595

If the land is otherwise comparable, merely because the witness was not factually correct on description, the evidence cannot be discarded.=whether the appellants are entitled for enhanced compensation in respect of their acquired land and covered by LAR 31/1990 on the file of Principal Sub Judge, Kottayam. The Land Acquisition Officer awarded compensation of Rs.11,000/- per cent.=The High Court declined to consider A4 on two grounds (1) The original owner of the land (since deceased) when examined before the Reference Court was not truthful in the sense that according to him A4 land did not have road frontage, which no doubt is factually false. (2) He claimed costs for the retention wall on the riverside boundary, despite the fact that the same had been put up at Government expense. This conduct of the witness would only show that he was a greedy person at the worst. Obviously he made an attempt to claim more value than A4 deposing that A4 did not have road frontage and yet Rs.17,250/- was the centage value. But that is not a ground for discarding A4. If the land is otherwise comparable, merely because the witness was not factually correct on description, the evidence cannot be discarded. In fixing the land value, body language of the witness or his conduct in Court are all not really relevant. The fixation is mainly based on the factual position as revealed from the documents. Therefore, we are of the view that the appellants shall be entitled to land value for the acquired land fixed at Rs.17250/- per cent and they are also entitled for other statutory benefits in terms of the Land Acquisition Act 1894.

                                                                  REPORTABLE

                           SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS.3610-3612 OF 2007
                 (Arising out of SLP(C) No.24535-37 of 2003)


K.S. SANJEEV (DEAD)BY LRS. ETC. ETC.         APPELLANTS

                                   VERSUS

STATE OF KERALA AND ANR.                     RESPONDENTS


                                  WITH

                    CIVIL APPEAL NO.3613 OF 2007


                               J U D G M E N T


KURIAN,J.



            Abatement is set aside.
            Delay in filing substitution application is condoned.
            Application for substitution not opposed  and  is,  accordingly,
allowed.

1.    The short question  to  be  decided  is  whether  the  appellants  are
entitled for enhanced compensation in respect of  their  acquired  land  and
covered by LAR 31/1990 on the file of Principal  Sub  Judge,  Kottayam.  The
Land Acquisition Officer awarded compensation of Rs.11,000/- per  cent.  The
Reference Court declined to grant any  enhancement  though,  the  appellants
relied on A4 and A14 documents. A4 land abutting M.C. Road is  in  Panchayat
area whereas the acquired land is in  the  Municipal  area,  Kottayam  town.
Both are in close proximity, it is not disputed. A14 is a letter  issued  to
the  Department  of  Telecommunications,   inter  alia,  stating  that   the
Department is not interested in the property  as  the  value  fixed  by  the
District Collector  is  Rs.27500/-.  It  seems  from  the  record  that  the
Department declined to respond to the aforesaid letter on  the  ground  that
the value of the land was very high.

2.     Be that as it may, before us, the learned counsel for the  appellants
has placed reliance only on A4 land. It is not in dispute that the  property
covered by A4 document was sold for Rs.189750/-  (Rs.17250/-  per  cent)  on
27.10.1986. The date of Section 4(1) Notification in the case before  us  is
03.02.1987. We see no justification as to why the said document  should  not
be taken into consideration for  fixing  the  land  value.  A4  land  is  in
Panchayat area whereas the acquired land is in  Municipal  area  and  it  is
also abutting the M.C. Road. Southern boundary of  the  property  is  river.
The claim was in fact for Rs. 75,000/- per cent.

3.    Mr. M.T. Goerge, learned  counsel  for  the  State  submits  that  the
acquired land is wet land. Records show that the acquired land  is  not  wet
land but reclaimed dried land, though lying below the road level, as can  be
seen from the finding of the High Court.

4.    The High Court  declined  to  consider  A4  on  two  grounds  (1)  The
original owner of  the  land  (since  deceased)  when  examined  before  the
Reference Court was not truthful in the sense that according to him A4  land
did not have road frontage, which  no  doubt  is  factually  false.  (2)  He
claimed costs for the retention wall on the riverside boundary, despite  the
fact that the same had been put up at Government expense.  This  conduct  of
the witness would only show that he  was  a  greedy  person  at  the  worst.
Obviously he made an attempt to claim more value than A4  deposing  that  A4
did not have road frontage and yet Rs.17,250/- was the  centage  value.  But
that  is  not  a  ground  for  discarding  A4.  If  the  land  is  otherwise
comparable,  merely  because  the  witness  was  not  factually  correct  on
description, the evidence cannot be discarded. In  fixing  the  land  value,
body language of the witness or his conduct in  Court  are  all  not  really
relevant. The fixation is mainly based on the factual position  as  revealed
from the documents.

5.    Therefore, we are of the view that the appellants  shall  be  entitled
to land value for the acquired land fixed at Rs.17250/- per  cent  and  they
are also entitled  for  other  statutory  benefits  in  terms  of  the  Land
Acquisition Act 1894.

6.    Appeals are allowed accordingly. No costs.

                                             ....................J.
                                             (KURIAN JOSEPH)


                                        .....................J.
                                          (ROHINTON FALI NARIMAN)

NEW DELHI
JANUARY 7, 2016

deleted levy of penalty u/s 271-C =In the instant case we are not dealing with collection of tax u/s 201(1) or compensatory interest u/s 201(1A). The case of the assessee is that these amounts have already been paid so as to end dispute with Revenue. In the present appeals we are concerned with levy of penalty u/s 271-C for which it is necessary to establish that there was contumacious conduct on the part of the assessee. We find that on similar facts Hon'ble Delhi High Court have deleted levy of penalty u/s 271-C in the cae of M/s. Itochu Corporation, reported in 268 ITR 172 (Del) and in the case of CIT Vs. Mitsui & Company Ltd. reported in 272 ITR 545. Respectfully following the aforesaid judgments of Hon'ble Delhi High Court and the decision of the ITAT, Delhi in the case of Television Eighteen India Ltd., we allow the assessee's appeal and cancel the penalty as levied u/s 271-C.”

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 1704 OF 2008


      COMMR.OF INCOME TAX-XVIII,                     APPELLANT
     DELHI

                                VERSUS

      BANK OF NOVA SCOTIA                           RESPONDENT



                                  J U D G M E N T


   KURIAN, J.



1.    The short issue pertains to the assessment of  penalty  under  Section
271-C of the Income Tax Act, 1961. Against the order of  Assessing  Officer,
the respondent took up the matter in appeal and the Commissioner  of  Income
Tax (Appeals) deleted the levy  of penalty.

2.    The matter was pursued by the Revenue before the Income Tax  Appellate
Tribunal.   The Income Tax Appellate Tribunal vide  order  dated  31.03.2006
entered the following findings:

      “11..We have carefully  considered  the  rival  submissions.   In  the
instant case we are not  dealing  with  collection  of  tax  u/s  201(1)  or
compensatory interest u/s 201(1A).  The case of the assessee is  that  these
amounts have already been paid so as to end dispute with  Revenue.   In  the
present appeals we are concerned with levy of penalty u/s  271-C  for  which
it is necessary to establish that there  was  contumacious  conduct  on  the
part of the assessee.  We find that on  similar  facts  Hon'ble  Delhi  High
Court have deleted levy of penalty u/s 271-C  in  the  cae  of  M/s.  Itochu
Corporation, reported in 268 ITR 172 (Del)  and  in  the  case  of  CIT  Vs.
Mitsui & Company Ltd. reported in 272 ITR 545.  Respectfully  following  the
aforesaid judgments of Hon'ble Delhi High Court  and  the  decision  of  the
ITAT, Delhi in the case of Television Eighteen  India  Ltd.,  we  allow  the
assessee's appeal and cancel the penalty as levied u/s 271-C.”


3.    Being aggrieved, the Revenue took up the matter before the High  Court
of Delhi against the order of the Income Tax Appellate Tribunal.   The  High
Court rejected the appeal only on the ground that  no  substantial  question
of law arises in the matter.

4.    On facts, we are convinced that there is no  substantial  question  of
law, the facts and law having  properly  and  correctly  been  assessed  and
approached by the Commissioner of Income Tax (Appeals) as  well  as  by  the
Income Tax Appellate Tribunal.  Thus, we see no merits in the appeal and  it
is accordingly dismissed. No costs.

                                              ………………………………………………J.
          (KURIAN JOSEPH)


                                             …………………………………………………………J.
         (ROHINTON FALI NARIMAN)
      New Delhi;
      January 07, 2016