LAW FOR ALL

Wednesday, January 18, 2017

why DACP Scheme cannot be extended to Doctors engaged as Commissioned Officers in AMC Cadre. =As regards the writ petition filed under Article 32 of the Constitution, we dispose of the same with liberty to the writ petitioner to either intervene in the remanded proceedings before the Tribunal or to file a fresh Original Application for the relief claimed by him in the present writ petition, which can be decided by the Tribunal along with the other remanded original applications. Accordingly, we partly allow the two appeals preferred by Union of India and thereby set aside the order(s) passed by the Tribunal in the respective appeals and instead remand the respective Original Applications to the Tribunal for reconsideration of the entire matter de novo. Needless to observe, the Tribunal may decide all the remanded original applications or any further original application on the same subject matter analogously to avoid any conflicting decision and multiplicity of proceedings. We grant liberty to the original applicant(s) to amend the pleadings, if so advised, including to ask for further relief. In that event, however, the Tribunal will give opportunity to the appellants (respondents in the Original Application(s)) to file a response to the amended pleadings and further relief, as the case may be.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3798 OF 2015

Union of India and Ors. … Appellants

Versus

K.P. Singh and Anr. … Respondents

WITH

C.A.No.3799/2015 AND W.P. NO. 957 OF 2014

J U D G M E N T

A.M. KHANWILKAR, J.

The respondents in the aforementioned two appeals and the petitioner
in the companion writ petition served as officers of Army Medical Corps, a
Medical Service, under the Government of India, with more than 20 years of
commissioned/Group-A gazette service. The Army Medical Corps is a cadre of
Doctors serving in the Army, Navy and Air Force. It is an organized
medical service of Central Government.

2. The respondents in the two appeals approached the Armed Forces
Tribunal at New Delhi, by way of an Original Application contending that
they were entitled to receive Dynamic Assured Career Progression as per the
DACP Scheme, as approved by the Central Government. Even the writ
petitioner in the companion writ petition has sought similar relief. He has
prayed for a direction against the Central Government to implement the
DACP scheme even in relation to the medical officers/doctors who are
commissioned officers of the Armed Forces.

3. An Original Application seeking similar relief was filed by one Col.
Sanjeev Sehgal[1] . The same was allowed by the Tribunal vide order dated
18th July 2011. In that case, the Tribunal had noted the stand of the
department (appellants) that the matter regarding implementation of DACP
scheme qua the doctors in AMC was still under examination. Further, the
appropriate Authority was expected to take a decision in that behalf after
examining the issue in due course. The Tribunal, however, proceeded to
dispose of the said Original Application in the following terms:

“Heard the learned counsel for the both the parties and perused the
documents including Annexures 1,2 and 3.

There is no denial that the DACP Scheme is equally applicable to AMC
Cadre. The scheme has already been implemented in several Departments.
However, the same has not been implemented in the Armed Forces for the
reasons best known to them and the matter is hinging for the last about
three years. This is clearly detrimental to the interest of the AMC
officers. It ought to have been implemented much earlier by the Ministry
of Defence and the concerned authorities of Armed Forces.

In the facts and circumstances, the Respondents are directed to issue
instructions for the implementation of the DACP Scheme in the light of
Annexures A-1 A-2 and A-3 attached with the application within three months
from the date of receipt of copy of this order.

With the above direction, this application stands disposed of”.

This decision became final consequent to the dismissal of Civil Appeal
filed by the Department before this Court.

4. Relying on the said decision, the Tribunal allowed the two Original
Applications filed by the respondents in the aforementioned appeals. The
Tribunal also directed the department to issue instructions for
implementation of the DACP Scheme and by placing the concerned respondents
to the 4th financial upgradation of grade pay of Rs. 10,000/- under the
DACP Scheme. The original application filed by the respondents in C.A. No.
3798 of 2015, was allowed by the Armed Forces Tribunal at New Delhi, being
O.A. 178 of 2014, on 17th April, 2014. Similarly, the Original Application
No. 108 of 2014 filed by the respondents in C.A. No. 3799 of 2015 was
allowed vide order dated 9th April, 2014. The department has assailed
these orders in the respective appeals.

5. When the present appeals were pending for consideration, the
petitioner in companion W.P. No. 957 of 2014 approached this Court praying
for the following relief:

“Issue a mandamus for direction to the respondents thereby to implement the
recommendations of 6th Pay Commission from the date of issuance of Official
Memorandum (OM) dated 29.10.2008 issued by the Government of India,
Ministry of Health and Family Welfare, CHS division, in Army Medical Corps
(AMC) within a specific time;

Pass any such other order(s) as deemed fit and proper to secure the ends of
justice”.

6. It is an admitted position that the decision of the Armed Forces
Tribunal, Chandigarh Bench in the case of Col. Sanjeev Sehgal (supra) was
assailed by the appellants by way of Civil Appeal D.No. 14342 of 2013
before this Court. That was, however, summarily dismissed at the
preliminary hearing stage on 23rd September, 2013 by the Bench presided by
Justice T.S. Thakur (as he then was). The order reads thus:

“Heard.

Apart from the fact that there is an inordinate delay of 589 days in
the filing of this application for grant of leave, we see no substantial
question of law of general/public importance arises for our consideration.
The prayer for leave to appeal is accordingly declined and the application
dismissed”.

7. Nonetheless the present appeals and writ petition came to be admitted
on 13th April, 2015 after due consideration, by a Bench of two learned
Judges of which Justice T.S. Thakur (as he then was) was a member.
Further, when the appeals and writ petition were pending and heard on
different dates, the appellants were granted liberty to file further
affidavits. Keeping in mind the stand taken by the department, this Court
(presided by Chief Justice T.S.Thakur as he then was) vide order dated 11th
December, 2015 permitted the appropriate Authority to revisit the matter
afresh and take a decision as may be advised. Indeed, that was without
prejudice to the rights and contentions of the parties in the present
proceedings. Pursuant to the liberty granted by this Court, a formal
decision has been taken at the highest level in the Ministry of Defence,
Government of India which has been communicated to the Chairman, Chiefs of
Staff Committee (COSC) vide letter dated 13th January, 2016. We deem it
apposite to reproduce the said letter in its entirety inasmuch as the
department has reiterated the same stand in the two appeals as also to
oppose the writ petition. The same reads thus:
“Annexure A-3

No. 10/1/2010-D(Medical)
Government of India
Ministry of Defence

Sena Bhavan, New Delhi-110011
Dated the 13th January, 2016
To,
The Chairman,
Chiefs of Staff Committee (COSC),
COSC Secretariat,
263D, South Block,
New Delhi.

Subject: Recommendations of the COSC regarding Dynamic Assured Career
Progression (DACP) Scheme in respect of Defence Forces Personnel.
Sir,
I am directed to refer to the letter No.C/7026/6tt CPC/Vol. III dated
25.8.2015 of the Chairman, Chiefs of Staff Committee (COSC) on the above
noted subject, and to say that as requested in the aforesaid letter, the
COSC was given an opportunity to present the case of the Services for grant
of DACP Scheme to all Defence Forces Officers alongwith the Armed Forces
Medical Services (AFMS) Officers before the Hon’ble Raksha Mantri on
08.01.2016. In the presentation made by the COSC, it was stated that the
DACP Scheme, as recommended by the 6th Central Pay Commission (CPC) in para
3.6 of its report, is applicable to AFMS doctors also. The COSC also
referred to para 12 of the Resolution No.1/1/2008-IC dated 29.08.2008,
wherein, it has been stated that the DACP Scheme for doctors will be
extended upto Senior Administrative Grade (SAG) for Medical Doctors having
20 years of regular service, or 7 years of regular service in the Non
Functional Selection Grade (NFSG) of Rs.8700/- grade pay in PB-4 and that
all the medical doctors whether belonging to organized services or holding
isolated posts will be covered by the DACP Scheme.
2. During the course of the presentation, the COSC was informed that
since separate recommendations were made by the 6th CPC for Defence Forces
Personnel, the recommendation made in para 3.6 is not applicable to the
AFMS doctors as they are part and parcel of the Defence Forces. The COSC
was also informed that the Resolution dated 29.08.2008 of the Ministry of
Finance, Department of Expenditure is applicable only in respect of
civilian government employees, as clearly stated in para 1 of the said
Resolution and therefore, the recommendation made in para 12 thereof is
applicable in respect of civilian doctors and not in respect of the AFMS
doctors.
3. Further, the relevant aspects for grant of DACP to Armed Forces
Medical Services (AFMS) officers, as also for grant of same Grade Pay to
all Defence Officers, as recommended by the COSC have also been considered
carefully.
4. Upon such consideration, the first significant aspect which has
clearly emerged is that the DACP is not at all applicable to Commissioned
Officers serving as doctors in AFMS Cadre, for more than one reason which
are set out herein below:
(i) As per existing Govt. orders commissioned officers serving as
doctors belonging to AFMS constitute a separate class in themselves. They
have a separate treatment with regard to recruitment procedure,
appointment, terms and conditions of their employment including promotions,
pay structure etc. as contained in AI 74/1976 issued by the Govt. of India,
Ministry of Defence. Being commissioned officers they are employed in the
Indian Army, the Indian Air Force and the Indian Navy, i.e., Army, Navy &
Air Force. They are unlike other civilian doctors serving in Directorate
General of Armed Forces Medical Services (DGAFMS), who do not become
commissioned officers and for whom separate Govt. orders exist regarding
their terms and conditions of service.
(ii) Similarly, the procedure of appointment, terms and conditions
of employment including promotions, pay structure etc. for other civilian
doctors appointed in other Departments/Ministries of the Govt. of India are
entirely different. These civilian doctors form/constitute a separate
class. Their service conditions etc. are dealt with by the respective
Ministries like Ministry of Health & Family Welfare, Ministry of Railways,
Ministry of Home Affairs in cases of doctors in Para Military Forces like
Border Security Force, Central Reserve Police Force etc. and are governed
by CCS Rules etc.
(iii) Therefore, doctors who are commissioned officers in AFMS in the
Indian Army, the Indian Air Force and the Indian Navy form a separate
class. The successive Central Pay Commissions have also dealt with them
separately, in the recommendations made by them to Govt. of India. The
recommendations are also made by the Central Pay Commissions providing
separately for the civilian doctors dealt with by other
Ministries/Departments such as Ministry of Health & FW. Ministry of
Railways, etc.
(iv) In the present case, the doctors constituting AFMS who are
Commissioned Officers in the Indian Army, the Indian Air Force and the
Indian Nave are to be governed by the resolution/decision taken by the
Ministry of Defence, Govt. of India on 30.08.2008 and not by the
resolution/decision dated 29.08.2008 by the Ministry of Finance dealing
with all civilian Government servants including doctors who are not
commissioned officers in the Indian Army, the Indian Air Force and the
Indian Navy.
(v) The existing sanctioned hierarchy of promotion for doctors
joining the Indian Army, the Indian Air Force and the Indian Navy as
commissioned officers is as under:
(a) Captain/Flight Lieutenant/Lieutenant
(b) Major/Squadron Leader/Lieutenant Commander
(c) Lieutenant Colonel/Wing Commander/Commander
(d) Colonel/Group Captain/Captain(Navy)
(e) Brigadier/Air Commodore/Commodore(Navy)
(f) Major General/Air Vice Marshal/Rear Admiral
(g) Lieutenant General/Air Marshal/Vice Admiral
(vi) As per existing Govt. orders issued by the Govt. of India, Ministry
of Defence, promotion in Army Medical Corps(AMC) upto the rank of Captain,
Major and Lt. Col and their equivalents in the Indian Navy and the Indian
Air Force are by time scale subject to meeting the laid down criteria and
substantive promotion to the ranks of Colonel, Brigadier, Major General and
Lieutenant General and their equivalents in the Indian Navy and Indian Air
Force will be by ‘selection’ to fill the vacancies authorized from time to
time subject to the officer being found fit in all respects by appropriate
selection board as approved by the competent authority.
(vii) In terms of para 10 of AI 74/1976, officers granted permanent
commission in the Army Medical Corps will receive pay and allowances at
such rates and under such conditions as are laid down in Pay and Allowances
Regulations for Officer of the Army, as amended from time to time by the
Ministry of Defence, Govt. of India in consultation with Department of
Expenditure, Ministry of Finance.
(viii) It is evident from record that before the 5th Central Pay
Commission, doctors belonging to Central Health Service, Railways etc. had
raised a grievance of stagnation, lack of promotional avenues etc. while
dealing with terms and conditions of service and pay and allowances of
doctors serving in Central Health Service (CHS), the Railway Health Service
and the Indian Ordnance Factories Services, etc. the 5th Central Pay
Commission noted that there was stagnation and lack of proper promotional
avenues for such doctors in the aforesaid three services and as such, it
recommended DACP for them. Therefore, for the benefit of doctors belonging
to CHS, Railways, Indian Ordnance Factories Services-the DACP was
recommended by the CPC only for the civilian doctors governed by the
Ministry of Health & Family Welfare etc. in that category. This benefit was
not extended to commissioned officers serving as doctors in the three
Services being governed by separate norms including pay scales, promotions,
etc. laid down by the Ministry of Defence.
(ix) It is also evident from record that the Ministry of Defence,
Government of India, vide letter dated 28.10.2005, conveyed the sanction of
the President to the reckonable commissioned service for promotion to the
rank lieutenant Colonel and equivalent as 11 years and for promotion to
Colonel (Time Scale) as 24 years. Thus, this letter was directed towards
restructuring of Non-Select Ranks in commissioned officers cadre of AFMS.
(x) The above mentioned order dated 28.10.2005 was aimed at
granting faster promotions to the commissioned officers doctors
constituting a separate class. The difference in promotional avenues and
hierarchical cadre, pay and allowances and other benefits of AMC officers
vis-à-vis civilian doctors is tabulated and shown as below:
| |Doctors of AFMS as Commissioned |Civilian Doctors under |
| |officers in the Indian Army, the |the Central Health Scheme|
| |Indian Air Force and the Indian |etc. |
| |Navy | |
|Governing |Ministry of Defence (MoD) vide |Ministry of Health & |
|resolution |No.1(3)/2008-D (Pay/Services) |Family Welfare dated |
|issued by |dated 30.8.2008 |30.10.2008 issued |
|the Govt. of| |pursuant to Ministry of |
|India | |Finance resolution dated |
| | |29.8.2008 |
|Service |AFMS doctors are Commissioned |Government by different |
|conditions |Officers in Military Uniform and |set of terms and |
| |are therefore part of Armed |conditions of service as |
| |Forces. All the service conditions|applicable under the |
| |in the matter of pay and |applicable rules such as |
| |allowances and service benefits |Central Civil Services |
| |applicable to other army personnel|(CCS) Rules etc. in |
| |are applicable to AFMS doctors. |respective Health |
| | |services. |
|Grade Pay |…..Rs.6,100/- |After implementing the |
|(GP) |Rs.6,600/- |DACP scheme Rs.5,400/- |
| |Rs.8,000/- |….. Rs.6,600/- |
| |Rs.8,700/- |Rs.7,600/- ….. |
| |Rs.10,000/- |Rs.10,000/- |
| |Rs.12,000/- | |
|Promotional |Captain/Flight |After grant of DACP |
|Avenue/hiera|Lieutenant/Lieutenant |promotion avenues of |
|rchy |Major/Squadron Leader/Lieutenant |civilian doctors are: |
| |Commander |Medical Officers |
| |Lieutenant Colonel/Wing |Senior Medical Officers |
| |Commander/Commander |Chief Medical Officer |
| |Colonel/Group Captain/Captain |Chief Medical Officer |
| |(Navy) |(NFSG) |
| |Brigadier/Air Commodore/Commodore |SAG |
| |(Navy) | |
| |Major General/Air Vice | |
| |Marshal/Rear Admiral | |
| |Lieutenant General/Air | |
| |Marshal/Vice Admiral | |
| |DGAFMS | |
|Other |Military Service Pay @ Rest. |No such allowance/benefit|
|service |6000/- pm for all officers up to |is available to civilian |
|benefits |the rank of Brig in addition to |doctors dealt with by the|
| |Grade Pay, Outfit allowance, Kit |decisions of the Ministry|
| |Maintenance Allowance, Ration |of Health & Family |
| |Money decided from time to time |Welfare. |

(xi) It is evident from record that Armed Forces Personnel
(Commissioned Officers) and Civilian Government employees are two different
classes, the Central Pay Commissions (CPC) make separate recommendations
for them. The 6th CPC also made separate recommendations with regard to
‘Pay Scales of Defence Forces Personnel’ (Chapter 2.3) and ‘Allowances &
Conditions of service of Defence Forces Personnel’ (Chapter 4.10).
Therefore, when the decisions was to be taken by the Govt. of India,
Ministry of Defence with regard to recommendations of 6th Central Pay
Commission regarding grant of pay and allowances etc. to the defence
personnel, the draft resolution was examined by the Department of
Expenditure, Ministry of Finance.

(xii) A note was issued by the Department of Expenditure on 29.08.2008
making it abundantly clear that the recommendation of Dynamic ACP has
nothing to do with the doctors inducted as commissioned officers in the
Indian Army, the Indian Air Force and the Indian Navy by, inter alia,
observing as under:

“Ministry of Defence may please refer to Draft Resolution regarding
implementation of the Government’s decision on Pay Commission’s
recommendations relating to Officers of Defence Forces for vetting before
issue.

2. A point (ix) has been added in the Draft Resolution regarding the
enhanced Grade Pay for middle level officers (from Captain/Equ. To
Brigadier/equ.).

3. In the annexure to the Resolution where revised pay scales have been
indicated, for the sake of clarity and understanding, MOD may like to put
two tables simultaneously one containing the recommendations of the Sixth
CPC and the other showing final decision of the Government in this regard.
Similar tables have been put in this Ministry’s resolution relating to
civilian Government employees.

4. In the Annexure to the Resolution relating to Allowances concessions
& benefits and conditions of service of Defence Forces personnel, against
item 8, point no.(ii) relating to grant of Dynamic ACP to doctors has been
deleted, as the same is not applicable to doctors in the Defence Forces…….”

(xiii) The above-mentioned unambiguous position incorporated in para 4
of the note dated 29.08.2008 of the Department of Expenditure to the effect
that DACP Scheme has nothing to do and is not applicable to doctors
(Commissioned Officers) in the Indian Army, the Indian Air Force and the
Indian Navy, and was accordingly not mentioned in the eventual Resolution
issued by the Ministry of Defence, Govt. of India on 30.08.2008
implementing the recommendations of the 6th CPC.

(xiv) Therefore, as in the past, two separate Resolutions were issued by
the Government conveying the decisions on the recommendations of the 6th
CPC. One Resolution was issued by the Ministry of Finance in respect of the
Civilian employees vide resolution No.1/1/2008-IC dated 29.8.2008 and
another Resolution was issued by the Ministry of Defence in respect of
Armed Forces Personnel (including AFMS Commissioned Officers) vide
No.1(30)/2008-D (Pay/Services) dated 30.08.2008.

(xv) The civilian doctors including civilian doctors in the AFMS (other
than Commissioned Officers) are governed by the Resolution dated 29.08.2008
issued by the Ministry of Finance, Dept. of Expenditure read with the
Circular by the Ministry of Health & Family Welfare dated 30.10.2008.

(xvi) As per Govt. orders the Resolution dated 29.08.2008 deals only with
the civilian employees of the Central Govt. in Groups ‘A’, ‘B’, ‘C’, ‘D’
including civilian doctors in the DGAFMS (other than Commissioned
Officers). The DACP Scheme for doctors in the Resolution dated 29.08.2008
dealt in para 12 is only with regard to civilian doctors including civilian
doctors in the DGAFMS (other than Commissioned Officers).

(xvii) The Resolution of the Ministry of Defence dated 30.08.2008 is
for Defence personnel including doctors who are appointed as ‘Commissioned
Officers’. Para 5 of the said resolution of the Ministry of Defence dated
30.08.2008 is reproduced as under;-

“…..5. The decisions taken by the Government accordingly on
various recommendations of the Commission in respect of officers of Armed
Forces are indicated in the statement at Annexure-I to this resolution. The
existing pay scales of Officers of the Armed Forces are indicated in the
Statement at Annexure-II…..”

(xviii) Item No.7 of Annexure-I and Item No.7 of Annexure-IB appended
to the Resolution of the Ministry of Defence dated 30.08.2008 providing
separately for the pay for AMC Officers and also payment of various
allowances for the doctors working as commissioned officers in the Armed
Forces.

(xix) it is also clear from the recommendations made by the 6th CPC in para
3.6.7 of its Report that ‘the DACP Scheme recommended by 5” Central Pay
Commission for different streams of doctors should be extended to all
doctors including those working in isolated posts. The promotions under
DACP for other categories of doctors will be guided by the same conditions
as applied in case of doctors working in Central Health Scheme” is in
respect of the Civilian Government employees. Accordingly, the same was
mentioned in para 12 of the Resolution dated 29.08.2008 issued by the
Deptt. Of Expenditure, Ministry of Finance which was in respect of the
Civilian employees. In pursuance of this Resolution of Deptt. Of
Expenditure, Ministry of Finance, the Ministry of Health & Family Welfare
(M/o H&FW) vide their O.M. No.A.45012/2/2008-CHS.V dated 29.10.2008
extended the DACP Scheme to all medical doctors, whether belonging to
organized services or holding isolated posts. Thus, it is clear that the
O.M. dated 29.10.2008 of Mb H&FW is applicable only in respect of civilian
doctors and not in respect of the AFMS doctors, as the AFMS doctors are
part and parcel of Armed Forces Personnel.

(xx) However, for the civilian doctors of DGAFMS who are not commissioned
Officers, Ministry of Defence issued a Circular dated 15.01.2009 making
available for them the benefit of DACP Scheme. As per existing orders
civilian doctors (who are not the Commissioned Officers) working as General
Duty Medical Officers and Teaching Sub-Cadre in the DGAFMS are always dealt
with and provided for with same service conditions/benefits which are
decided in relation to other civilian doctors in Central Government
services by the respective authorities such as Ministry of Health & Family
Welfare, Railways, Ordnance Factories etc. and their service conditions
decided by the Ministry of Defence, Govt. of India for the commissioned
officers constituting AFMS Cadre.

(xxi) The doctors inducted as Commissioned Officers in the Indian Army, the
Indian Air Force and the Indian Navy having at least 7 promotional
positions in their respective services i.e. Army, Navy and Air Force,
having different pay scales etc. – have no concern whatsoever with the
terms and conditions of service of the civilian doctors. As demonstrated
above, this distinction between the category of doctors working as
commissioned officers in the Indian Army, the Indian Air Force and the
Indian Navy governed by the norms laid down by the Ministry of Defence and
the civilian doctors governed by Ministry of Health & Family Welfare,
Railways etc. – has always been well appreciated and acknowledged by the
successive Pay Commissions including the 5th and 6th Central pay
Commissions.

(xxii) The record of Court cases mentioned and sought to be relied
upon by the COSC nowhere reveals that the above-mentioned clear and
unambiguous distinction between these two categories of doctors, i.e.
commissioned officers in the Indian Army, the Indian Air Force and the
Indian Navy and civilian doctors were properly disclosed/placed/explained
to the Hon’ble Armed Forces Tribunal (AFT), Chandigarh Bench while
defending the OA filed by the Col. (Retd.) Sanjeev Sehgal for
implementation of DACP Scheme for AFMS officers. These facts were also not
placed before the Hon’ble Supreme Court in Civil Appeal D No.14342 of 2013.
In the two subsequent court cases decided by the Ld. AFT, Principal Bench,
New Delhi while defending the OAs filed by Col.(Retd.) Ajamal Singh Bhayal
and Gp. Capt.(Retd.) K.P. Singh, again the true and correct facts in this
regard were not placed before the AFT.

(xxiii) It is evident from the order dated 18.7.2011 in O.A. No.488 of
2011 passed by Ld. AFT. In other words, the inapplicable Resolution dated
29.8.2008 was placed and relied upon in O.A. No.488 of 2011 and the correct
Resolution dated 30.08.2008 of the Ministry of Defence applicable in that
case was not placed before the Ld. AFT.

(xxiv) When the above mentioned aspects came to be noticed, the
matter was again examined and the case was taken up with the Ld. Attorney
General for India, who advised the Govt. to file appeals before the Hon’ble
Supreme Court of India in the two cases of Col.(Retd.) Ajamal Singh Bhayal
and Gp. Capt. (Retd.) K.P. Singh.

(xxv) Therefore, the official records of the Govt. clearly establish
and demonstrate that doctors belonging to two different categories/classes
are treated and provided for separately. It would therefore not be
permissible to grant benefit of DACP (meant for civilian doctors including
the civilian doctors in the DGAFMS) to the doctors inducted as Commissioned
Officers in the Indian Army, the Indian Air Force and the Indian Navy.

(xxvi) The issue of grant of DACP Scheme with higher Grade Pay to
doctors and higher Grade Pay to other commissioned officers of the three
Services as recommended by the COSC is not only impermissible but also has
far reaching serious huge financial and other structural ramifications for
the Defence Forces.

(xxvii) The impermissible demand [by creating a confusion by not
placing correct facts] for making available the benefit of DACP Scheme
meant only for civilian doctors including the civilian doctors in the
DGAFMS to the doctors inducted as Commissioned Officers in the Indian Army,
the Indian Air Force and the Indian Navy who are dealt with and provided
for by the decisions of the Ministry of Defence, Govt. of India – has a
potential of creating serious issues in the Indian Army, the Indian Air
Force and the Indian Navy having 7 promotional avenues for doctors inducted
as commissioned officers and are at par with the other non-doctors
commissioned officers in the Armed Forces. Such an impermissible demand
also inevitably carries with it a huge possibility of creating an
irreversible imbalance in the working of the commissioned officers in all
the Indian Army, the Indian Air Force and the Indian Navy in that, the
hitherto existing same yardstick for doctors inducted as commissioned
officers and non-doctor commissioned officers in various Arms and Services
in all the three Services (approx. 70,000).

(xxviii) In fact, it is on record that because of these reasons the COSC
also inter alia, observed in its earlier communication that grant of DACP
to doctors in AFMS will adversely impact intra-cadre Dynamics in respect of
70,000 Commissioned Officers. The COSC had also stated that the
implementation of DACP should necessarily be in consonance with Service
ethos and should subscribe and not upset the well established command and
control structure.

7. It is reiterated that in view of the above mentioned clear
distinction between two different classes of doctors i.e. Commissioned
Officers in the AFMS and civilian doctors [not in the class of Commissioned
Officers], there was never any recommendation by the 6th [being the
appropriate body] for granting DACP to doctors recruited as Commissioned
Officers in the three Services.

8. In view of the position stated above, it is clear that the DACP
Scheme as brought out in M/o H&FW O.M. dated 29.10.2008, is not applicable
for AFMS doctors working as Commissioned Officers in the three Services and
therefore, the same had not been and cannot be extended to them.

9. This issues with the approval of Hon’ble Raksha Mantri.

Yours faithfully,

(D.K. Paliwal)
Deputy Secretary (Medical)”

8. The respondents in the two appeals and the petitioner in the writ
petition, however contend that the decision of the Tribunal dated 18th
July, 2011 in the case of Col. Sanjeev Sehgal (supra) having attained
finality with the dismissal of the civil appeal preferred by the department
before this Court on 25th September, 2013, it is not open to the department
to contend to the contrary. Any new plea to be taken by department is hit
by the principles of res judicata. Further, the department cannot be
permitted to rely on new documents such as Memorandum dated 29th August,
2008 and 30th August, 2008 which were never pressed into service in the
earlier proceedings, that the department has acquiesced in the decision in
Col. Sehgal’s case (supra) consequent to the dismissal of the appeal
against that decision by this Court, by not preferring any review against
the decision of this Court. Also because, after the decision of the
Supreme Court in the case of Col. Sehgal (supra), the department took
positive steps and decided to act upon the direction given by the Tribunal
– as is manifest from the office note prepared by Shri D.K. Paliwal dated
22nd September, 2014. That has been duly approved by the Defence
Secretary, Shri R.K. Mathur on 10th September, 2014 and finally by the
then Defence Minister himself on 13th September, 2014. With the change of
Government, it is urged that it is not open to the new Government or the
new Defence Minister to take a different view of the matter and more so in
violation of the direction issued by the Tribunal and confirmed by the
Supreme Court. It is contended that consequent to the decision of the
Supreme Court rejecting the appeal preferred by the department in Col.
Sehgal’s case (supra), the direction given by the Tribunal (Chandigarh
Bench) stood merged on the principle of doctrine of merger. Therefore, the
decision now taken by the present establishment is in the teeth of the
decision of the Supreme Court. It is submitted that the appeals filed by
the department are not maintainable and in any case the department cannot
be permitted to rely on documents which were not part of the record before
the Tribunal when such a plea was not taken before the Tribunal either in
the Original Applications filed by the respondents in the two appeals or in
the previous round of proceedings in the case of Col. Sanjeev Sehgal
(supra).

9. The respondents have also invited our attention to the incorrect
certification given by the advocate on record that no additional facts, new
documents or grounds have been taken in the appeal. On merits, it is
contended that the recommendation made by the 6th Pay Commission does not
expressly exclude the application of DACP Scheme to the Doctors in the
Armed Forces Medical Services (AFMS). On the other hand, it is wide
enough to include them. Therefore, extending benefit of DACP to Doctors in
AMC as has been granted to other doctors in organized and unorganized
sectors in the Central Government is imperative. They further contend
that there is no distinction made by the order dated 15th January, 2009
between the sub cadre of civilian doctors and doctors belonging to the
cadre of regular Armed Forces. Similarly, even the 6th Pay Commission
makes no such distinction. In any case, such a discrimination is not
permissible in law. They further submitted that the appeals filed by the
department are devoid of merits and deserve to be dismissed; and instead a
direction be given to the department to give the benefit of the DACP Scheme
to doctors in the Army Medical Corps on the same terms as given to doctors
in other sub cadres of AFMC vide order No.12017/CMO/DGAFMS/DG-
2B/126/09/D(Med.) dated 15th January, 2009 and arrears be paid to them
with 18 per cent interest per annum with effect from 29th October, 2008.
The respondents and writ petitioners have also prayed for imposing
exemplary costs on the department for pursuing untenable pleas.

10. The moot question for our consideration is: whether the medical
doctors serving as Commissioned Officers in Armed Forces are covered by the
Ministry of Defence’s Resolution dated 30th August 2008 or Ministry of
Finance’s Resolution dated 29th August 2008? Secondly, whether that issue
is conclusively answered by the Tribunal in Col. Sehgal’s case (supra)?
The decision of the Tribunal as upheld by this Court in the case of Col.
Sanjeev Sehgal (supra), was in the context of the relief claimed for
implementation of the Dynamic Assured Career Progression Scheme (DACP) as
approved by the Central Government. In that case reliance was placed on
para 3 of the Office Memorandum bearing No.F.No.A-45012/2/08-CH-V dated
29th October 2008 issued by the Ministry of Health and Family Welfare,
Government of India. The said proceeding was contested by the department.
The Tribunal noted the contents of the reply filed by the Department to
oppose the said Original Application, wherein it was admitted that
Government of India, Ministry of Health and Family Welfare has implemented
the DACP Scheme in respect of Officers of Central Health Services and
Medical/Dental Doctors in Central Government respectively. The Tribunal
also noted the stand taken by the Department that the said scheme in
Defence has not been implemented and the matter is under consideration at
various levels before military authorities and depending on the decision to
be taken at the appropriate level, necessary orders will be passed in due
course. After having noticed this contention of the department, the
Tribunal disposed of the Original Application vide order dated 18th July
2011, the relevant portion whereof has been extracted in the opening part
of this judgment. That decision was challenged before this Court by way of
Civil Appeal D.No.1434/2013, which was dismissed at the preliminary hearing
stage on 23rd September 2013. The order passed by this Court has also been
extracted hereinabove.

11. On a fair reading of the said decision of the Tribunal dated 18th
July 2011, all that it records is that there was no denial that the DACP
scheme is equally applicable to AMC Cadre. Further, the Scheme has already
been implemented in civil departments except in the Armed Forces. On that
basis, the Tribunal issued a direction to the Department to issue
instructions for implementation of the DACP Scheme in the light of the
Office Memorandum dated 29th October 2008 issued by the Ministry of Health
& Family Welfare, dated 18th November 2008 issued by the Ministry of
Finance and dated 27th November 2008 issued by the Ministry of Defence.

12. According to the respondents (in the aforementioned appeals),
therefore, it is not open to the department to contend to the contrary or
take any position which would inevitably result in over reaching the
decision of this Court which has attained finality. The appellants, on the
other hand, contend that the factual position recorded by the Tribunal is
contrary to the official record, which, however, was not placed before the
Tribunal or before this Court. In that, the correct factual position was
not brought to the notice of the Tribunal and also this Court, in the Civil
Appeal filed before this Court against the decision of the Tribunal.
Nevertheless, considering the far reaching financial and structural
ramifications for the Defence Forces and in larger public interest, it is
essential to examine the core issue about the applicability of DACP Scheme
to Commissioned Officers of Armed Forces. It is submitted that the
department intends to proceed against the officials responsible for filing
such inaccurate and deficient pleadings – which entailed in recording a
finding that there was no denial that the DACP scheme is equally applicable
to AMC Cadre. There is ample contemporaneous record to indicate that the
Scheme was made applicable only to Civilian Doctors and not to Commissioned
Officers serving in AMC Cadre. It is not a case of the department
approbating and reprobating, but a case of an inaccurate plea being taken
before the Tribunal which led to the said finding. If the officials
responsible for filing such pleadings, in the departmental action are found
to have done it intentionally, it would be a case bordering on fraud. The
recommendation made in respect of the DACP scheme by the 6th Pay Commission
was limited to Civilian Doctors (not in respect of Commissioned Officers in
three Services). Besides the resolution passed by the Ministry of Finance
dated 29th August 2008, bearing No.1/1/08-IC made it explicit that DACP
scheme was applicable only in respect of civilian employees in the
organized and unorganized sectors employed by the Central Government as
also in the All India Services and to Chairpersons or Members of regulatory
bodies. Besides the said resolution, the Ministry of Finance, Department of
Expenditure, Implementation Cell on 29th August 2008 vide its communication
made it amply clear to the Ministry of Defence that the proposal regarding
implementation of the Government decision of pay revision qua Officers of
Armed Forces for grant of DACP to Doctors who are Commissioned Officers in
AMC Cadre has been deleted as the same is not applicable to the Doctors in
the Defence Forces. The Ministry of Defence accordingly, on 30th August
2008 issued a resolution extending the benefits of other allowances (other
than DACP) for the Commissioned Officers in three Services as recommended
by the 6th Pay Commission and approved by the Government. In other words,
the appropriate authority had consciously not extended the benefit of DACP
Scheme to Doctors who were Commissioned Officers in AMC Cadre. Further,
according to the appellants the recommendation of the 6th Pay Commission to
grant DACP to Doctors was limited to Civilian Doctors and not to Doctors
who were Commissioned Officers in AMC Cadre. The 6th Pay Commission has
provided a large number of other allowances to Commissioned Officers in AMC
Cadre. It is stated that Armed Forces Medical Services is a tri – service
organization i.e. those who are commissioned as Doctors can be employed in
any of the three services, namely (i) Indian Army, (ii) Indian Navy, and
(iii) Indian Air Force. Commissioned Officers are governed by Army
Instructions 74/1976. It is submitted that doctors joining the three
services as Commissioned Officers get the rank of :-

(i) Lt/Capt/Flight Lieutenant /Flying Officer

(ii) Captain/Major/Squadron Leader/Lt. Comdr.

(iii) Lt.Colonel/Wing Comdr./Comdr.

(iv) Colonel/Group Capt./Capt.Navy

(v)Brigadier /Air Cmdr./Cmdr.Navy

(vi) Major General/Air Vice Marshal/Rear Admiral

(vii) Lt.General/Air Marshal/Vice Admiral.

Their promotion in AMC Cadre up to the rank of Captain, Major and Lt. Col.
are by time scale subject to meeting the prescribed criteria and
substantive promotion to the ranks of Colonel, Brigadier, Major General and
Lieutenant General is by selection. As per para 10 of Army Instructions
74/1976, officers granted permanent commission in the Army Medical Corps
receive pay and allowances at the rates laid down in Pay and Allowances
Regulations for officers of the Army, as amended from time to time by the
Ministry of Defence, Government of India in consultation with Department of
Expenditure, Ministry of Finance. On the other hand, the Doctors serving in
Ministry of Defence are categorized as civilian medical doctors. In so far
as civilian medical doctors are concerned, the Government has already
extended DACP Scheme in terms of Circular issued by the Ministry of Defence
dated 15th January 2009. The fact that no express denial was stated in the
pleadings filed before the Tribunal cannot be construed as admission of the
Department to extend DACP even to doctors working in AMC Cadre. If DACP
Scheme is extended to doctors working in AMC Cadre, it would result in an
anomalous situation. For, other Commissioned Officers working on the same
rank would not be entitled for DACP considering the service conditions of
the Commissioned Officers who are governed by the Army Act, 1950, the Navy
Act, 1957 and the Air Force Act, 1950 as the case may be. A distinction has
always been made between AMC Cadre and other Medical Services in the
Ministry of Defence. Even the previous Pay Commission reports maintained
that distinction while making recommendations, as has been done by the 6th
Pay Commission. The 6th Pay Commission has not expressly recommended
application of DACP Scheme to Commissioned Officers in AMC Cadre, as can be
discerned from the said report itself. While it has limited that
recommendation to civilian employees it has not done so to doctors
generally.

13. Reverting to the decision of the Tribunal in the case of Col. Sanjeev
Sehgal (supra), in our opinion, the observation made therein will have to
be construed in the context of the final direction issued to the
Department. The authorities were directed to issue instructions for the
implementation of DACP scheme in the light of Annexure A-1, A-2 and A-3
attached with the Original Application within three months from the date of
receipt of copy of the order. That direction will have to be construed to
mean that the authorities must act in accordance with law and extend DACP
scheme even to the Commissioned Officers of AMC Cadre, if permissible in
law. No more and no less. Therefore, this Court whilst dismissing the Civil
Appeal on 23rd September 2011 observed that no substantial question of law
of general/public importance arises for consideration. That decision cannot
be given an expansive meaning so as to be read that de-hors the legal
position, DACP scheme be extended even to doctors working as Commissioned
Officers in AMC Cadre. Thus understood, it must follow that the issues
raised in the present appeals by the Government and in particular by the
Ministry of Defence are not concluded nor have they attained finality. On
this finding, it may not be necessary for us to dilate on the possibility
of an inaccurate reply affidavit having been filed before the Tribunal to
oppose the Original Application of Col. Sanjeev Sehgal or for that matter
the circumstances in which the appropriate Authority was inclined to
implement DACP scheme qua Commissioned Officers in Armed Forces. It is
possible that office note in that behalf was prepared on an erroneous
assumption that the Court has directed that the DACP scheme be implemented
even in the case of doctors working as Commissioned Officers in Armed
Forces. We, however, leave it open to the department to proceed against the
concerned officers who were responsible for creating such confusion and for
filing an inaccurate affidavit and for not bringing on record entire
material relevant for deciding the principal question about the entitlement
of doctors working as Commissioned Officers in AMC Cadre to receive DACP.

14. The next question is: whether this Court should itself examine the
gamut of arguments regarding applicability of DACP Scheme even to Doctors
serving as Commissioned Officers in AMC Cadre. Indeed, the entire material
has now been placed before us, on the basis of which, it may be possible to
answer the matters in issue. The appellants have relied on the Office
Memorandum dated 29th August, 2008 issued by the Ministry of Finance and
the resolution issued by the Ministry of Defence dated 30th August, 2008.
The former Office Memorandum including the Office Noting on the file at
different levels, prima facie, indicates that there was a clear exclusion
of applicability of DACP Scheme to Doctors working as Commissioned Officers
in AMC Cadre. In addition, our attention has been invited to the reference
made to the 6th Pay Commission and the specific recommendation made by the
6th Pay Commission for civilian doctors and separate recommendations for
the Commissioned Officers of AMC Cadre. Since the Tribunal has not either
in the case of Col. Sanjeev Sehgal (supra) or in the impugned decision
examined all these aspects on its merits, we deem it appropriate to
relegate the parties before the Tribunal for reconsideration of the entire
matter afresh without being influenced by the observations made in the
order passed in case of Col. Sanjeev Sehgal (supra) or the dismissal of
appeal against that decision by this Court on 23rd September, 2011. We say
so because we are of the considered opinion that the direction issued by
the Tribunal in the case of Col. Sanjeev Sehgal (supra) to the Department
for issuing instructions was obviously to decide the issue under
consideration in accordance with law, on the question of applicability of
DACP Scheme even to the Doctors working as Commissioned Officers in AMC
Cadre. As noted in the earlier part of the judgment, controversy has far-
reaching structural ramifications to the Armed Forces besides financial
implications and the possibility of a discrimination within the cadre if
additional benefit was to be given only to Doctors working as Commissioned
Officers in AMC Cadre and not to other Commissioned Officers working on the
same rank. This requires deeper consideration. For that reason, this Court
during the pendency of these appeals had permitted the appropriate
authority to examine the entire matter and take a necessary decision.
Pursuant to that liberty, the Deputy Secretary (Medical) of the Ministry
of Defence, Government of India, has informed of the decision of the
Government vide communication dated 13th January, 2016 to the Chairman,
Chiefs of Staff Committee (COSC). It would be open to the original
applicants (respondents in the appeals) to question the correctness thereof
in the remanded proceedings. This would provide an opportunity to both
sides to pursue their pleas and also facilitate the Tribunal to examine the
correctness of the position and answer the matters in issue appropriately.

15. For the nature of order we propose to pass, it is unnecessary to
dilate further on the other contentions. To do substantial and complete
justice to the parties, we leave all questions on merits open to be
considered by the Tribunal in the first instance. In other words, we are
not inclined to accept the grievance of the respondents in the appeals that
the appellants should not be permitted to rely on new documents which were
not part of the record before the Tribunal or for that matter incorrect
declaration and affidavit filed in support of the present appeals.
Instead, we give liberty to both sides to file further pleadings and place
on record any further documents before the Tribunal.

16. The appellants must file a comprehensive affidavit accompanied by all
the relevant documents on which they would like to place reliance to
buttress the stand as to why DACP Scheme cannot be extended to Doctors
engaged as Commissioned Officers in AMC Cadre. That affidavit be filed
within four weeks from today. The respondents (original applicants) will be
free to file a response to that affidavit within three weeks from the date
of service of such affidavit on them. The Tribunal may endeavour to dispose
of the remanded original applications expeditiously preferably within six
months of the completion of pleadings.

17. As regards the writ petition filed under Article 32 of the
Constitution, we dispose of the same with liberty to the writ petitioner to
either intervene in the remanded proceedings before the Tribunal or to file
a fresh Original Application for the relief claimed by him in the present
writ petition, which can be decided by the Tribunal along with the other
remanded original applications.

18. Accordingly, we partly allow the two appeals preferred by Union of
India and thereby set aside the order(s) passed by the Tribunal in the
respective appeals and instead remand the respective Original Applications
to the Tribunal for reconsideration of the entire matter de novo.

19. Needless to observe, the Tribunal may decide all the remanded
original applications or any further original application on the same
subject matter analogously to avoid any conflicting decision and
multiplicity of proceedings.

20. We grant liberty to the original applicant(s) to amend the pleadings,
if so advised, including to ask for further relief. In that event, however,
the Tribunal will give opportunity to the appellants (respondents in the
Original Application(s)) to file a response to the amended pleadings and
further relief, as the case may be.

21. Both the appeals and writ petition are disposed of in the above terms
with no order as to costs.

………………………………….J.
(A.M.Khanwilkar)

………………………………….J.
(Dr.D.Y.Chandrachud)
New Delhi,
Dated: 12th January, 2017
-----------------------
[1]

[2] O.A. No. 488 of 2011 before the Armed Forces Tribunal at
Chandigarh

Wednesday, January 11, 2017

whether the High Court was right in holding that the application filed by the auction purchaser under Order XXI Rule 95 C.P.C. for delivery of possession of immovable property was barred by limitation. 7. Article 134 of the Limitation Act will apply to an application filed under Order XXI Rule 95 C.P.C. by the auction purchaser for delivery of possession of property sold in execution of a decree. The limitation for filing an application under Order XXI Rule 95 C.P.C. is one year from the date when the sale becomes absolute.= sale confirmation is different from sale become absolute = where there is an appeal from an order of the Subordinate Judge, disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Article 180 of the Limitation Act, until the disposal of the appeal, even though the Subordinate Judge may have confirmed the sale, as he was bound to do, when he decided to disallow the above-mentioned application.” [Underlining added] The same view was reiterated in the case of Sri Ranga Nilayan Rama Krishna Rao vs. Kandokori Chellayamma AIR 1953 SC 425. 17. Considering the facts of the present case in the light of the above principles, in our view, the sale could not have become absolute till the proceedings in the revision in C.R.P.No.2829/2002 was over and the revision was disposed of. The judgment-debtor, as discussed earlier, had filed two applications E.A.No.315/2001- (i) to set aside the sale alleging that the property was sold for a lower price as a result of which substantial injury was caused to him and (ii) another application in E.A. No.77/2002- an application for appointing Advocate-Commissioner to assess the value of the property. As against the order dismissing E.A.No.77/2002, the judgment- debtor has filed the revision in C.R.P.No.2829/2002. So long as the said revision was pending, the court auction sale was yet to become absolute. For the sake of arguments, assuming that the said revision was allowed, then in that case the court auction sale would have been set aside on the ground that the property was sold for a lesser price. Therefore, till the revision in C.R.P. No. 2829 of 2002 was disposed of in one way or the other, the sale was yet to become absolute. Be it noted that in Article 134 of the Limitation Act, the legislature has consciously adopted the expression “when the sale becomes absolute” and not when the sale was confirmed. As against the order dismissing E.A No.77/2002 since the revision was preferred by the judgment-debtor and the same came to be disposed of on 9th July, 2003 the sale became absolute only on 9th July, 2003. The application filed under Order XXI Rule 95 C.P.C on 30th August, 2003 was well within the period of limitation. In our view, the High Court was not right in holding that the application under Order XXI Rule 95 C.P.C was barred by limitation and the impugned order cannot be sustained.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4204 OF 2007

UNITED FINANCE CORPORATION ...Appellant

Vs.

M.S.M. HANEEFA
...Respondent

J U D G M E N T

R. BANUMATHI, J.

This appeal arises out of order passed by the High Court of
Kerala at Ernakulam allowing the revision in CRP No.894 of 2005 dated 2nd
January, 2006 and thereby dismissing the application filed by the appellant
under Order XXI Rule 95 C.P.C. on the ground that the application is barred
by limitation and declining direction for delivery of possession of the
immovable property purchased in the court auction sale to the appellant.

2. Brief facts which led to filing of this appeal are as under:-

The appellant/Corporation-decree holder filed a suit for realisation of the
suit claim and the said suit was decreed for a sum of Rs.2,72,100/- along
with interest. In execution of the decree, the property of
respondent/judgment-debtor was auctioned on 27th October, 2001 and the same
was purchased by the appellant/decree-holder himself. The appellant/decree
holder purchased schedule item No.2 property to an extent of 1 acre and 50
cents comprised in Survey No.458/1 of Parassala Village along with the
building situated therein. The sale was made absolute on 1st June, 2002.
Sale certificate was issued to the appellant on 17th March, 2003. In the
meanwhile, the first respondent/judgment-debtor filed an application to set
aside the auction sale (Order XXI Rule 90 C.P.C.) and also another
application for appointment of the Commissioner to value the property.
Both the applications came to be dismissed by the executing court. Being
aggrieved by the order dismissing the Commissioner's application
(E.A.No.77/2002), the first respondent/judgment-debtor filed revision
before the High Court in C.R.P.No.2829/2002 in which the High Court has
granted stay of further proceedings in the execution petition. The Civil
Revision Petition came to be dismissed on 9th July, 2003.

3. Thereafter, on 30th August, 2003, auction purchaser appellant filed
an application under Order XXI Rule 95 C.P.C. for delivery of possession of
the immovable property purchased in the court auction sale. In the said
application by order dated 12th August, 2005, the executing court ordered
delivery of possession which was challenged by the judgment-debtor before
the High Court in C.R.P.No.894/2005. By the impugned order dated 2nd
January, 2006, the High Court allowed the revision and dismissed the
application filed by the appellant under Order XXI Rule 95 CPC on the
ground that it is barred by limitation.

4. Challenging the impugned order, learned counsel for the appellant
submitted that the court auction sale does not become absolute on the
passing of a mere order of confirmation of sale as enjoined by Order XXI
Rule 92(1) C.P.C. but it becomes absolute only on the termination of
proceedings initiated to set aside the order confirming the sale. It was
further submitted that the steps taken by the judgment-debtor to set aside
the court auction sale were pending consideration before the High Court in
C.R.P.No.2829/2002, which proceedings came to be terminated only on 9th
July, 2003 and hence the application filed by the appellant under Order XXI
Rule 95 C.P.C. on 30th August, 2003 was well within the period of
limitation as stipulated under Article 134 of the Limitation Act, 1963. It
was contended that in terms of Section 15(1) of the Limitation Act, the
period of stay granted by the High Court between 17.09.2002 to 09.07.2003
should be excluded and the High Court erred in allowing the revision
thereby dismissing the application filed under Order XXI Rule 95 C.P.C. as
barred by limitation.

5. Per contra, Mr. Basava Prabhu S. Patil, learned senior counsel
appearing for the respondent submitted that as per the decision in Ganpat
Singh (Dead) by LRs. vs. Kailash Shankar and Others (1987) 3 SCC 146, an
application filed by the auction purchaser under Order XXI Rule 95 C.P.C.
for delivery of possession of property would be covered by Article 134 of
the Limitation Act and in the present case limitation will start from 1st
June, 2002 i.e. the date of confirmation of sale and hence the application
filed on 30th August, 2003 is beyond the period of limitation. Placing
reliance on Pattam Khader Khan vs. Pattam Sardar Khan and Anr. (1996) 5 SCC
48, it was further contended that for filing application by the auction
purchaser for delivery of possession (under Order XXI Rule 95 C.P.C.),
issuance of sale certificate is not the sine qua non and therefore the
appellant cannot contend that the application filed on 30th August, 2003 is
within the period of limitation. The learned senior counsel further
submitted that the High Court has noted the fact that the first
respondent/judgment-debtor has already deposited the entire amount and
since the decree-holder/appellant-Corporation itself is the auction
purchaser, this is not a fit case warranting interference in exercise of
extraordinary jurisdiction under Article 136 of the Constitution of India,
notwithstanding the leave already granted.

6. We have carefully considered the rival contentions and perused the
impugned order and other materials on record. The point falling for
consideration is whether the High Court was right in holding that the
application filed by the auction purchaser under Order XXI Rule 95 C.P.C.
for delivery of possession of immovable property was barred by limitation.

7. Article 134 of the Limitation Act will apply to an application filed
under Order XXI Rule 95 C.P.C. by the auction purchaser for delivery of
possession of property sold in execution of a decree. The limitation for
filing an application under Order XXI Rule 95 C.P.C. is one year from the
date when the sale becomes absolute. Article 134 of the Limitation Act
reads as under:-

| |Description of application|Period of|Time from which |
| | |limitatio|period begins to |
| | |n |run |
|134|For delivery of possession|One year |When the sale |
| |by a purchaser of | |becomes absolute. |
| |immovable property at a | | |
| |sale in execution of a | | |
| |decree | | |

8. For better appreciation of the contentions, we may recapitulate the
various dates in seriatum as under:
Date of auction sale … 27.10.2001

Confirmation of sale … 01.06.2002

Sale certificate … 17.03.2003

Stay granted by High Court in force … 17.09.2002

till 09.07.2003

Order XXI Rule 95 C.P.C. … 30.08.2003

application filed by appellant

9. The High Court relied upon the decision in Pattam Khader Khan's case
(supra) for taking the view that the application filed under Order XXI Rule
95 C.P.C by the auction purchaser-appellant was barred by limitation. The
High Court held that the issuance of a sale certificate is not sine qua non
for the maintenance of an application for delivery, since the title of the
court auction purchaser becomes complete on the confirmation of the sale
under Order XXI Rule 92 C.P.C. We may refer to the relevant portion of the
judgment in Pattam Khader Khan's case, which reads as under:

“11. Order 21 Rule 95 providing for the procedure for delivery of property
in occupation of the judgment-debtor etc., requires an application being
made by the purchaser for delivery of possession of property in respect of
which a certificate has been granted under Rule 94 of Order 21. There is
nothing in Rule 95 to make it incumbent for the purchaser to file the
certificate along with the application. On the sale becoming absolute, it
is obligatory on the court though, to issue the certificate. That may, for
any reason, get delayed. Whether there be failure to issue the certificate
or delay of action on behalf of the court or the inaction of the purchaser
in completing the legal requirements and formalities, are factors which
have no bearing on the limitation prescribed for the application under
Article 134. The purchaser cannot seek to extend the limitation on the
ground that the certificate has not been issued. It is true though that
order for delivery of possession cannot be passed unless sale certificate
stands issued. It is manifest therefore that the issue of a sale
certificate is not “sine qua non” of the application, since both these
matters are with the same court.....” [Underlining added]

10. Order XXI Rule 95 C.P.C. deals with delivery of property in occupancy
of judgment-debtor. Order XXI Rule 95 C.P.C. reads as under:

“95. Delivery of property in occupancy of judgment-debtor – Where the
immovable property sold is in the occupancy of the judgment-debtor or of
some person on his behalf or of some person claiming under a title created
by the judgment-debtor subsequently to the attachment of such property and
a certificate in respect thereof has been granted under rule 94, the Court
shall, on the application of the purchaser, order to delivery to be made by
putting such purchaser or any person whom he may appoint to receive
delivery on his behalf in possession of the property, and, if need be, by
removing any person who refuses to vacate the same.” [Underlining added]

11. By careful reading of Order XXI Rule 95 C.P.C., the language of the
provision is indicative that application for delivery of possession of
property purchased in the court auction can be filed where “a certificate
in respect thereof has been granted under Rule 94 of Order XXI. Having
regard to the language of Order XXI Rule 95 C.P.C. “a certificate in
respect thereof has been granted in Rule 94…..” “…… the court shall, on
the application of the purchaser, order delivery to be made…..” we have our
own doubts regarding the view taken by this Court in the case of Pattam
Khader Khan's case (supra) “……..that there is nothing in Rule 95 to make it
incumbent for the purchaser to file the certificate alongwith the
application……” and “……..that the issuance of sale certificate is not a sine
qua non of the application….”. However in the facts and circumstances of
the present case, we are not inclined to refer the question to a larger
Bench - whether issuance of sale certificate is a sine qua non or not for
filing the application under Order XXI Rule 95 C.P.C. and the question is
left open.

12. The High Court mainly considered the applicability of Section 15(1)
of the Limitation Act to arrive at the conclusion that the application for
delivery of possession was barred by limitation. The High took the view
that application under Order XXI Rule 95 C.P.C. does not attract Section
15(1) of the Limitation Act and consequently the period during which order
of stay of execution granted by the revisional court cannot be taken into
consideration. The High Court further observed that the court auction
purchaser cannot seek to extend the limitation on the ground that the stay
granted by the High Court was in force to claim the benefit of Section
15(1) of the Limitation Act.

13. As seen from the records after the court auction sale on 27th
October, 2001, the first respondent-judgment-debtor had filed two
applications, one for setting aside the sale under Order XXI Rule 90
C.P.C.(E.A.No.315/2001) and another for appointment of an Advocate-
Commissioner to assess the value of the property sold in the court auction
sale (E.A.No.77/2002) and both the applications were dismissed by the
executing court. As against the order passed in E.A. No.77/2002, in and by
which, executing court declined to appoint Commissioner to assess the value
of the property, the judgment-debtor has filed the revision in
C.R.P.No.2829/2002 in which the High Court has granted stay of further
proceedings in the execution. The said revision came to be dismissed on
9th July, 2003. While allowing the revision filed by the respondent-
judgment-debtor, the High Court observed the period during which stay
granted by the High Court was in force i.e. from 17th September, 2002 to
9th July, 2003 cannot be excluded in terms of Section 15(1) of the
Limitation Act. The High Court took the view that application filed in the
execution petition seeking delivery of possession does not attract Section
15(1) of the Limitation Act.

14. The learned senior counsel appearing for the first respondent-
judgment-debtor submitted that the application filed under Order XXI Rule
95 C.P.C. for delivery of possession of immovable property by a purchaser
in a court auction sale cannot be construed as an application for execution
so as to attract Section 15 (1) of the Limitation Act and the High Court
rightly held that Section 15(1) of the Limitation Act cannot be applied to
an application for delivery of possession filed under Order XXI Rule 95
C.P.C.

15. Per contra, the learned counsel for the appellant-decree-holder
submitted that as per Section 47 C.P.C. all questions arising between the
parties to the suit in which the decree was passed or their representatives
and relating to the execution, discharge or satisfaction of the decree
shall be determined by the court executing the decree and not by a separate
suit. It was further submitted that as per Clause (a) of Explanation II of
Section 47 C.P.C., a purchaser of property at a sale in execution of a
decree shall be deemed to be a party to the suit in which the decree is
passed. Learned counsel for the appellant submitted that in view of
Section 47 C.P.C., a separate suit by the auction purchaser for recovery of
the possession of the property purchased in auction in execution of a
decree is barred. It was therefore contended that by a conjoint reading of
Order XXI Rule 95 C.P.C. read with Section 47 C.P.C., Section 15(1) of the
Limitation Act is to be made applicable even to an application filed under
Order XXI Rule 95 by the auction purchaser for delivery of property.
Having regard to the narrow compass of the question involved in the present
appeal, we are not inclined to go into the larger question of applicability
of Section 15(1) of the Limitation Act to an application filed under Order
XXI Rule 95 C.P.C. and this question of law is also left open.

16. As pointed out earlier, in terms of Article 134 of the Limitation
Act, an application for delivery of possession by a purchaser of immovable
property at a sale in execution of a decree has to be filed within a period
of one year from the date when the sale becomes absolute. Considering the
scope of the expression as to when the sale becomes absolute in the case of
Chandra Mani Saha and Ors vs. Anarjan Bibi and others AIR 1934 PC 134 it
was held as under:

“…In order to ascertain when such a sale as is referred to in the said
Article becomes absolute, reference must be made to the Civil Procedure
Code, and the orders and rules contained in the Sch.1 thereto, for that is
the Code which contains the provisions relating to the sale of immoveable
property in execution of decrees. Order 21, Rules 82 to 96, in the said
schedule are applicable to sales of immoveable property. Rules 89, 90 and
91 deal with applications to set aside a sale and Rule 92 (1) provides as
follows:

“Where no application is made under Rule 89, Rule 90, or Rule 91, or where
such application is made and disallowed, the Court shall make an order
confirming the sale and thereupon the sale shall become absolute.”

There is no doubt that the above-mentioned rule is applicable to the
present case ; for as already stated the judgment-debtors did apply to set
aside the sale, and the Subordinate Judge disallowed the applications on
15th April 1924, and on 22nd April 1924, he confirmed the sales. The
sales, therefore, became absolute on 22nd April 1924, at any rate so far as
the Court of the Subordinate Judge was concerned. But the judgment-debtors
had a right of appeal under Order 43, Rule (1)(j) against the orders of the
Subordinate Judge by which he disallowed their applications to set aside
the sales. This right of appeal the judgment-debtors exercised. Upon the
hearing of the appeals, the High Court, by reason of the provisions of
Section 107 (2) of the Code had the same powers as the Court of the
Subordinate Judge. In the present case, the High Court dismissed the
appeals and on such dismissal the orders of the Subordinate Judge
confirming the sales became effective and the sales became absolute. In
considering the meaning of the words in Article 180 of the Limitation Act,
it is useful to consider the converse case. Take a case in which the
Subordinate Judge allowed the application to set aside the sale; in that
case, of course, there could be no confirmation of the sale as far as the
Subordinate Judge was concerned, as there would be no sale to be confirmed.
But if, on appeal, the High Court allowed the appeal, and disallowed the
application to set aside the sale, the High Court would then be in a
position to confirm the sale, and on such an order of confirmation by the
High Court the sale would become absolute. Again, take a case in which the
Subordinate Judge disallowed the application to set aside the sale; there
would then be confirmation of the sale by the Subordinate Judge and the
sale would become absolute as far as his Court was concerned. If the High
Court allowed an appeal, and set aside the sale, there would then be no
sale, and, of course, no confirmation and no absolute sale.

Upon consideration of the sections and orders of the Code, their Lordships
are of opinion that in construing the meaning of the words "when the sale
becomes absolute" in Article 180, the Limitation Act, regard must be had
not only to the provisions of Order 21, Rule 92(1), of the schedule to the
Civil Procedure Code, but also to the other material sections and orders of
the Code, including those which relate to appeals from orders made under
Order 21, Rule 92(1). The result is that where there is an appeal from an
order of the Subordinate Judge, disallowing the application to set aside
the sale, the sale will not become absolute within the meaning of Article
180 of the Limitation Act, until the disposal of the appeal, even though
the Subordinate Judge may have confirmed the sale, as he was bound to do,
when he decided to disallow the above-mentioned application.” [Underlining
added]

The same view was reiterated in the case of Sri Ranga Nilayan Rama Krishna
Rao vs. Kandokori Chellayamma AIR 1953 SC 425.

17. Considering the facts of the present case in the light of the above
principles, in our view, the sale could not have become absolute till the
proceedings in the revision in C.R.P.No.2829/2002 was over and the revision
was disposed of. The judgment-debtor, as discussed earlier, had filed two
applications E.A.No.315/2001- (i) to set aside the sale alleging that the
property was sold for a lower price as a result of which substantial injury
was caused to him and (ii) another application in E.A. No.77/2002- an
application for appointing Advocate-Commissioner to assess the value of the
property. As against the order dismissing E.A.No.77/2002, the judgment-
debtor has filed the revision in C.R.P.No.2829/2002. So long as the said
revision was pending, the court auction sale was yet to become absolute.
For the sake of arguments, assuming that the said revision was allowed,
then in that case the court auction sale would have been set aside on the
ground that the property was sold for a lesser price. Therefore, till the
revision in C.R.P. No. 2829 of 2002 was disposed of in one way or the
other, the sale was yet to become absolute. Be it noted that in Article
134 of the Limitation Act, the legislature has consciously adopted the
expression “when the sale becomes absolute” and not when the sale was
confirmed. As against the order dismissing E.A No.77/2002 since the
revision was preferred by the judgment-debtor and the same came to be
disposed of on 9th July, 2003 the sale became absolute only on 9th July,
2003. The application filed under Order XXI Rule 95 C.P.C on 30th August,
2003 was well within the period of limitation. In our view, the High Court
was not right in holding that the application under Order XXI Rule 95 C.P.C
was barred by limitation and the impugned order cannot be sustained.

18. In the result, the impugned order of the High Court in C.R.P.No.894
of 2005 dated 2nd January, 2006 is set aside. This appeal is allowed. The
Executing Court is directed to restore E.A.No.297/2003 in O.S.No.57/1985
and to dispose of the same in accordance with law. No costs.

…….....................J.
[R.K. AGRAWAL]

.….......................J.
[R.BANUMATHI]
New Delhi;
January 11, 2017.

“There is an absolute bar against the Court taking seisin of the case under S.182 I.P.C. except in the manner provided by S.195 Crl.P.C. Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. The offence under S.182 is complete when a person moves the public servant for action. Where a person reports to a Tehsildar to take action on averment of certain facts, believing that the Tehsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made by the Tehsildar, as the public servant concerned under S.182, and not leave it to the police to put a charge-sheet. The complaint must be in writing by the public servant concerned. The trial under S.182 without the Tehsildar’s complaint in writing is, therefore, without jurisdiction ab initio.” (Emphasis supplied) 12) It is not in dispute that in this case, the prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under Section 195 of the Code. It is for this reason, in our considered opinion, the action taken by the prosecution against the appellant insofar as it relates to the offence under Section 182 IPC is concerned, is rendered void ab initio being against the law laid down in the case of Daulat Ram (supra) quoted above. 13) Learned counsel for the respondent (NCT Delhi), however, submitted that the State has, therefore, made a fresh application in this behalf before the Trial Court which, according to him, is still pending consideration. Be that as it may. 14) We express no opinion on such application, if it is filed by the State as, in our view, it has to be dealt with on its own merits in accordance with law by the Court concerned.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.64 of 2017
(Arising out of S.L.P.(Crl.)No. 8184 of 2015)

Saloni Arora Appellant(s)

VERSUS

State of NCT of Delhi Respondent(s)

WITH

CRIMINAL APPEAL No.65 of 2017
(Arising out of S.L.P.(Crl.)No. 1908 of 2016)

J U D G M E N T

Abhay Manohar Sapre, J.

1) S.L.P.(Crl.) No. 8184 of 2015 is filed against the order dated
06.07.2015 passed by the High Court of Delhi at New Delhi in Crl.M.C. No.
2447 of 2012 whereby the High Court disposed of the petition and directed
the Registrar General of the High Court of Delhi to make a formal complaint
in terms of paragraph 27 in Criminal Revision Petition No. 497 of 2008 for
prosecution of the appellant herein under Section 182 of the Indian Penal
Code, 1860 (hereinafter referred to as “IPC”).

2) S.L.P.(Crl.)No. 1908 of 2016 is filed against the order dated
01.02.2016 passed by the High Court of Delhi in Crl.M.A. No. 1775 of 2016
filed by the Registrar General of High Court of Delhi in Crl.M.C. No. 2447
of 2012 whereby the High Court modified its earlier order dated 06.07.2015
and directed the S.H.O., Police Station Anand Vihar, Delhi to make a formal
complaint in terms of the order dated 06.07.2015, in place of Registrar
General of the High Court of Delhi, who was directed to make a formal
complaint for prosecution of the appellant under Section 182 IPC.

3) Leave granted.

4) We herein set out the facts, in brief, to appreciate the issue
involved in these appeals.

5) These appeals arise out of criminal proceedings (SC No 13/2007)
pending in the Court of Additional Session Judge, Delhi in relation to the
offences registered under Sections 120-B, 201, 302, 364 and 365 IPC against
the accused on the basis of FIR No. 333/2006 PS: SPL. Cell.

6) In the aforementioned proceedings, the State Prosecuting Agency
sought to prosecute the appellant for commission of an offence punishable
under Section 182 IPC. The appellant, felt aggrieved of this action of the
prosecuting agency, filed an application for her discharge on the ground
that since no procedure as contemplated under Section 195 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as “the Code”) was
followed by the prosecution, the appellant cannot be prosecuted for such
offence.

7) The Trial Court, by order dated 25.05.2015, dismissed the appellant's
application and the order of the Trial Court was upheld by the High Court,
by impugned order, by dismissing the appellant's Criminal Misc. Application
giving rise to filing of these appeals by special leave by the appellant
before this Court.

8) Heard Mr. Ajay Choudhary, learned counsel for the appellant and Mr.
A.N.S. Nandkarni, learned ASG for the State.

9) Having heard the learned counsel for the parties and on perusal of
the record of the case, and further since the learned counsel for the
respondent in the course of his submissions fairly conceded that the
impugned order is not legally sustainable on a point of law and, in our
view rightly so, we are inclined to allow the appeals and set aside the
impugned orders.

10) As rightly pointed out by the learned counsel for the parties on the
strength of law laid down by this Court in the case of Daulat Ram vs.
State of Punjab, (AIR 1962 SC 1206) that in order to prosecute an accused
for an offence punishable under Section 182 IPC, it is mandatory to follow
the procedure prescribed under Section 195 of the Code else such action is
rendered void ab initio.

11) It is apposite to reproduce the law laid down by this Court in the
case of Daulat Ram (supra) which reads as under:

“There is an absolute bar against the Court taking seisin of the case
under S.182 I.P.C. except in the manner provided by S.195 Crl.P.C.

Section 182 does not require that action must always be taken if the
person who moves the public servant knows or believes that action would be
taken. The offence under S.182 is complete when a person moves the public
servant for action. Where a person reports to a Tehsildar to take action
on averment of certain facts, believing that the Tehsildar would take some
action upon it, and the facts alleged in the report are found to be false,
it is incumbent, if the prosecution is to be launched, that the complaint
in writing should be made by the Tehsildar, as the public servant concerned
under S.182, and not leave it to the police to put a charge-sheet. The
complaint must be in writing by the public servant concerned. The trial
under S.182 without the Tehsildar’s complaint in writing is, therefore,
without jurisdiction ab initio.” (Emphasis supplied)

12) It is not in dispute that in this case, the prosecution while
initiating the action against the appellant did not take recourse to the
procedure prescribed under Section 195 of the Code. It is for this reason,
in our considered opinion, the action taken by the prosecution against the
appellant insofar as it relates to the offence under Section 182 IPC is
concerned, is rendered void ab initio being against the law laid down in
the case of Daulat Ram (supra) quoted above.

13) Learned counsel for the respondent (NCT Delhi), however, submitted
that the State has, therefore, made a fresh application in this behalf
before the Trial Court which, according to him, is still pending
consideration. Be that as it may.

14) We express no opinion on such application, if it is filed by the
State as, in our view, it has to be dealt with on its own merits in
accordance with law by the Court concerned.

15) In the light of foregoing discussion, the appeals succeed and are
allowed. Impugned orders stand set aside.

………..................................J.
[A.K. SIKRI]

.……...................................J.
[ABHAY MANOHAR SAPRE]

New Delhi,
January 10, 2017
-----------------------
7

Tuesday, January 10, 2017

granting interim protection from arrest, the Court would not go on to the extent of including the provision of anticipatory bail as a blanket provision. = in certain cases, the High Courts, while dismissing the application under Section 482 CrPC are passing orders that if the accused-petitioner surrenders before the trial magistrate, he shall be admitted to bail on such terms and conditions as deemed fit and appropriate to be imposed by the concerned Magistrate. Sometimes it is noticed that in a case where sessions trial is warranted, directions are issued that on surrendering before the concerned trial judge, the accused shall be enlarged on bail. Such directions would not commend acceptance in light of the ratio in Rashmi Rekha Thatoi (supra), Gurbaksh Singh Sibbia (supra), etc., for they neither come within the sweep of Article 226 of the Constitution of India nor Section 482 CrPC nor Section 438 CrPC. This Court in Ranjit Singh (supra) had observed that the sagacious saying “a stitch in time saves nine” may be an apposite reminder and this Court also painfully so stated. 25. Having reminded the same, presently we can only say that the types of orders like the present one, are totally unsustainable, for it is contrary to the aforesaid settled principles and judicial precedents. It is intellectual truancy to avoid the precedents and issue directions which are not in consonance with law. It is the duty of a Judge to sustain the judicial balance and not to think of an order which can cause trauma to the process of adjudication. It should be borne in mind that the culture of adjudication is stabilized when intellectual discipline is maintained and further when such discipline constantly keeps guard on the mind. 26. In view of the aforesaid premises, we allow the appeal, set aside the impugned order of the High Court and direct that the investigation shall proceed in accordance with law. Be it clarified that we have not expressed anything on any of the aspects alleged in the First Information Report.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1144 OF 2016
(@ SPECIAL LEAVE PETITION (CRL.) NO. 5478 OF 2015)

THE STATE OF TELANGANA …APPELLANT(S)

VERSUS

HABIB ABDULLAH JEELANI & ORS …RESPONDENT(S)

J U D G M E N T

Dipak Misra, J.

The seminal issue that arises for consideration in this appeal, by
special leave, is whether the High Court while refusing to exercise
inherent powers under Section 482 of the Code of Criminal Procedure (CrPC)
to interfere in an application for quashment of the investigation, can
restrain the investigating agency not to arrest the accused persons during
the course of investigation.
2. The facts lie in a narrow compass. On the basis of a report by the
informant under Section 154 CrPC, FIR No. 205/2014 dated 26.07.2014 was
registered at Chandrayanagutta Police Station, Hyderabad for the offences
punishable under Sections 147, 148 149 and 307 of the Indian Penal Code
(IPC). Challenging the initiation of criminal action, the three accused
persons, namely, accused Nos. 1, 2 and 5, (respondent Nos. 1, 2 and 3
herein) invoked inherent jurisdiction of the High Court in Criminal
Petition No. 10012 of 2014 for quashing of the FIR and consequential
investigation. As the impugned order would show, the learned single Judge
referred to the FIR and took note of the submissions of the learned counsel
for the petitioners therein that all the allegations that had been raised
in the FIR were false and they had been falsely implicated and thereafter
expressed his disinclination to interfere on the ground that it was not
appropriate to stay the investigation of the case. However, as a submission
had been raised that the accused persons were innocent and there had been
allegation of false implication, it would be appropriate to direct the
police not to arrest the petitioners during the pendency of the
investigation and, accordingly, it was so directed.
3. It is submitted by Mr. Harin P. Raval, learned senior counsel
appearing for the State that the informant had sustained grievous injuries
and was attacked by dangerous weapons and custodial interrogation of the
accused persons is absolutely essential. According to him, the High Court
in exercise of inherent power under Section 482 CrPC can quash an FIR on
certain well known parameters but while declining to quash the same, it
cannot extend the privilege to the accused persons which is in the nature
of an anticipatory bail. Learned senior counsel would submit that the
nature of the order passed by the High Court is absolutely unknown to the
exercise of inherent jurisdiction under Section 482 CrPC and, therefore, it
deserves to be axed.

4. Ms. Nilofar Khan, learned counsel appearing for the respondent Nos. 1
to 3 in support of the order passed by the High Court submitted that the
custodial interrogation is not necessary in the facts of the case. She
would further submit that the plentitude of power conferred on the High
Court under
Section 482 CrPC empowers it to pass such an order and there being no
infirmity in the order, no interference is warranted by this Court.
5. The controversy compels one to visit the earlier decisions. In King
Emperor v. Khwaja Nazir Ahmad[1] while deliberating on the scope of right
conferred on the police under Section 154 CrPC, Privy Council observed:-
“… so it is of the utmost importance that the judiciary should not
interfere with the police in matters which are within their province and
into which the law imposes upon them the duty of enquiry. In India, as has
been shown, there is a statutory right on the part of the police to
investigate the circumstances of an alleged cognizable crime without
requiring any authority from the judicial authorities, and it would, as
their Lordships think, be an unfortunate result if it should be held
possible to interfere with those statutory rights by an exercise of the
inherent jurisdiction of the Court. The functions of the judiciary and the
police are complementary, not overlapping, and the combination of
individual liberty with a due observance of law and order is only to be
obtained by leaving each to exercise its own function, always of course
subject to the right of the Court to intervene in an appropriate case when
moved under Section 491 of the Criminal Procedure Code to give directions
in the nature of habeas corpus. In such a case as the present, however, the
Court's functions begin when a charge is preferred before it and not until
then.”

6. Having stated what lies within the domain of the investigating
agency, it is essential to refer to the Constitution Bench decision in
Lalita Kumari v. Government of Uttar Pradesh and Ors[2]. The question that
arose for consideration before the Constitution Bench was whether “a police
officer is bound to register a first information report upon receiving any
information relating to commission of a cognizable offence under Section
154 CrPC or the police officer has the power to conduct a ‘preliminary
inquiry’ in order to test the veracity of such information before
registering the same”? While interpreting Section 154 CrPC, the Court
addressing itself to various facets opined that Section 154(1) CrPC admits
of no other construction but the literal construction. Thereafter it
referred to the legislative intent of Section 154 which has been elaborated
in State of Haryana and Ors. v. Bhajan Lal and Ors.[3] and various other
authorities. Eventually the larger Bench opined that reasonableness or
credibility of the information is not a condition precedent for the
registration of a case. Thereafter there was advertence to the concept of
preliminary inquiry. In that context, the Court opined thus:-

“103. It means that the number of FIRs not registered is approximately
equivalent to the number of FIRs actually registered. Keeping in view the
NCRB figures that show that about 60 lakh cognizable offences were
registered in India during the year 2012, the burking of crime may itself
be in the range of about 60 lakhs every year. Thus, it is seen that such a
large number of FIRs are not registered every year, which is a clear
violation of the rights of the victims of such a large number of crimes.

104. Burking of crime leads to dilution of the rule of law in the short
run; and also has a very negative impact on the rule of law in the long run
since people stop having respect for the rule of law. Thus, non-
registration of such a large number of FIRs leads to a definite lawlessness
in the society.

105. Therefore, reading Section 154 in any other form would not only be
detrimental to the scheme of the Code but also to the society as a whole.
It is thus seen that this Court has repeatedly held in various decided
cases that registration of FIR is mandatory if the information given to the
police under Section 154 of the Code discloses the commission of a
cognizable offence.”

7. While dealing with the likelihood of misuse of the provision, the
Court ruled thus:-
“114. It is true that a delicate balance has to be maintained between the
interest of the society and protecting the liberty of an individual. As
already discussed above, there are already sufficient safeguards provided
in the Code which duly protect the liberty of an individual in case of
registration of false FIR. At the same time, Section 154 was drafted
keeping in mind the interest of the victim and the society. Therefore, we
are of the cogent view that mandatory registration of FIRs under Section
154 of the Code will not be in contravention of Article 21 of the
Constitution as purported by various counsel.”

8. The exceptions that were carved out pertain to medical negligence
cases as has been stated in Jacob Mathew v. State of Punjab[4]. The Court
also referred to the authorities in P. Sirajuddin v. State of
Madras[5] and CBI v. Tapan Kumar Singh[6] and finally held that what is
necessary is only that the information given to the police must disclose
the commission of a cognizable offence. In such a situation, registration
of an FIR is mandatory. However, if no cognizable offence is made out in
the information given, then the FIR need not be registered immediately and
perhaps the police can conduct a sort of preliminary verification or
inquiry for the limited purpose of ascertaining as to whether a cognizable
offence has been committed. But, if the information given clearly mentions
the commission of a cognizable offence, there is no other option but to
register an FIR forthwith. Other considerations are not relevant at the
stage of registration of FIR, such as, whether the information is falsely
given, whether the information is genuine, whether the information is
credible, etc. At the stage of registration of FIR, what is to be seen is
merely whether the information given ex facie discloses the commission of a
cognizable offence.
9. Be it noted, certain directions were issued by the Constitution
Bench, which we think, are apt to be extracted:-

“120.5. The scope of preliminary inquiry is not to verify the veracity or
otherwise of the information received but only to ascertain whether the
information reveals any cognizable offence.

120.6. As to what type and in which cases preliminary inquiry is to be
conducted will depend on the facts and circumstances of each case. The
category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal
prosecution, for example, over 3 months’ delay in reporting the matter
without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions
which may warrant preliminary inquiry.

120.7. While ensuring and protecting the rights of the accused and the
complainant, a preliminary inquiry should be made time-bound and in any
case it should not exceed 7 days. The fact of such delay and the causes of
it must be reflected in the General Diary entry.

120.8. Since the General Diary/Station Diary/Daily Diary is the record of
all information received in a police station, we direct that all
information relating to cognizable offences, whether resulting in
registration of FIR or leading to an inquiry, must be mandatorily and
meticulously reflected in the said diary and the decision to conduct a
preliminary inquiry must also be reflected, as mentioned above.”

10. We have copiously referred to the aforesaid decision for the simon
pure reason that at the instance of the informant the FIR was lodged and it
was registered which is in accord with the decision of the Constitution
Bench.
11. Once an FIR is registered, the accused persons can always approach
the High Court under Section 482 CrPC or under Article 226 of the
Constitution for quashing of the FIR. In Bhajan Lal (supra) the two-Judge
Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad[7], Jehan
Singh v. Delhi Administration[8], Amar Nath v. State of Haryana[9],
Kurukshetra University v. State of Haryana[10], State of Bihar v. J.A.C.
Saldanha[11], State of West Bengal v. Swapan Kumar Guha[12], Smt. Nagawwa
v. Veeranna Shivalingappa Konjalgi[13], Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre[14], State of Bihar v. Murad Ali Khan[15]
and some other authorities that had dealt with the contours of exercise of
inherent powers of the High Court, thought it appropriate to mention
certain category of cases by way of illustration wherein the extraordinary
power under Article 226 of the Constitution or inherent power under Section
482 CrPC could be exercised either to prevent abuse of the process of any
court or otherwise to secure the ends of justice. The Court also observed
that it may not be possible to lay down any precise, clearly defined and
sufficiently channelized and inflexible guidelines or rigid formulae and to
give an exhaustive list of myriad cases wherein such power should be
exercised. The illustrations given by the Court need to be recapitulated:-

“(1) Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a case
against the accused.

(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers under Section
156(1) of the Code except under an order of a Magistrate within the purview
of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and
the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable
offence but constitute only a non-cognizable offence, no investigation is
permitted by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient ground for proceeding
against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions
of the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide
and/or where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a view to spite him
due to private and personal grudge.”

It is worthy to note that the Court has clarified that the said
parameters or guidelines are not exhaustive but only illustrative.
Nevertheless, it throws light on the circumstances and situations where
court’s inherent power can be exercised.
12. There can be no dispute over the proposition that inherent power in a
matter of quashment of FIR has to be exercised sparingly and with caution
and when and only when such exercise is justified by the test specifically
laid down in the provision itself. There is no denial of the fact that the
power under Section 482 CrPC is very wide but it needs no special emphasis
to state that conferment of wide power requires the court to be more
cautious. It casts an onerous and more diligent duty on the Court.
13. In this regard, it would be seemly to reproduce a passage from
Kurukshetra University (supra) wherein Chandrachud, J. (as His Lordship
then was) opined thus:-

“2. It surprises us in the extreme that the High Court thought that in the
exercise of its inherent powers under Section 482 of the Code of Criminal
Procedure, it could quash a first information report. The police had not
even commenced investigation into the complaint filed by the Warden of the
University and no proceeding at all was pending in any court in pursuance
of the FIR. It ought to be realised that inherent powers do not confer an
arbitrary jurisdiction on the High Court to act according to whim or
caprice. That statutory power has to be exercised sparingly, with
circumspection and in the rarest of rare cases.”

14. We have referred to the said decisions only to stress upon the issue,
how the exercise of jurisdiction by the High Court in a proceeding relating
to quashment of FIR can be justified. We repeat even at the cost of
repetition that the said power has to be exercised in a very sparing manner
and is not to be used to choke or smother the prosecution that is
legitimate. The surprise that was expressed almost four decades ago in
Kurukshetra University’s case compels us to observe that we are also
surprised by the impugned order.
15. In the instant case, the High Court has not referred to allegations
made in the FIR or what has come out in the investigation. It has noted
and correctly that the investigation is in progress and it is not
appropriate to stay the investigation of the case. It has disposed of the
application under Section 482 CrPC and while doing that it has directed
that the investigating agency shall not arrest the accused persons. This
direction “amounts” to an order under Section 438 CrPC, albeit without
satisfaction of the conditions of the said provision. This is legally
unacceptable.
16. To appreciate the nature of the order passed, it is necessary to have
a survey of the authorities that deal with grant of anticipatory bail. In
Rashmi Rekha Thatoi and Anr. v. State of Orissa and Ors.[16] the High
Court while rejecting the application for anticipatory bail had directed
that if the accused persons surrender, the trial magistrate shall release
them on bail on such terms and conditions as he may deem fit and proper.
Analysing the scope of Section 438 CrPC as expressed by the Constitution
Bench in Gurbaksh Singh Sibbia v. State of Punjab[17] and other
decisions, the Court held thus:-
“33. We have referred to the aforesaid pronouncements to highlight how the
Constitution Bench in Gurbaksh Singh Sibbia (supra) had analysed and
explained the intrinsic underlying concepts under Section 438 of the Code,
the nature of orders to be passed while conferring the said privilege, the
conditions that are imposable and the discretions to be used by the courts.
On a reading of the said authoritative pronouncement and the principles
that have been culled out in Savitri Agarwal[18] there is remotely no
indication that the Court of Session or the High Court can pass an order
that on surrendering of the accused before the Magistrate he shall be
released on bail on such terms and conditions as the learned Magistrate may
deem fit and proper or the superior court would impose conditions for grant
of bail on such surrender. When the High Court in categorical terms has
expressed the view that it is not inclined to grant anticipatory bail to
the petitioner-accused it could not have issued such a direction which
would tantamount to conferment of benefit by which the accused would be in
a position to avoid arrest. It is in clear violation of the language
employed in the statutory provision and in flagrant violation of the dictum
laid down in Gurbaksh Singh Sibbia (supra) and the principles culled out in
Savitri Agarwal (supra). It is clear as crystal the court cannot issue a
blanket order restraining arrest and it can only issue an interim order and
the interim order must also conform to the requirement of the section and
suitable conditions should be imposed.”

Elaborating further, the Court held:-
“36. In the case at hand the direction to admit the accused persons to bail
on their surrendering has no sanction in law and, in fact, creates a dent
in the sacrosanctity of law. It is contradictory in terms and law does not
countenance paradoxes. It gains respectability and acceptability when its
solemnity is maintained. Passing such kind of orders the interest of the
collective at large and that of the individual victims is jeopardised. That
apart, it curtails the power of the regular court dealing with the bail
applications.

37. In this regard it is to be borne in mind that a court of law has to act
within the statutory command and not deviate from it. It is a well-settled
proposition of law what cannot be done directly, cannot be done indirectly.
While exercising a statutory power a court is bound to act within the four
corners thereof. The statutory exercise of power stands on a different
footing than exercise of power of judicial review. This has been so stated
in Bay Berry Apartments (P) Ltd. v. Shobha[19] and U.P. State Brassware
Corpn. Ltd. v. Uday Narain Pandey[20].”

17. In Ranjit Singh v. State of Madhya Pradesh and Ors.[21] the High
Court had directed that considering the nature of the allegation and the
evidence collected in the case-diary, the petitioner shall surrender before
the competent court and shall apply for regular bail and the same shall be
considered upon furnishing necessary bail bond. The said order was
challenged before this Court. The two-Judge Bench was constrained to
observe:-
“It is the duty of the superior courts to follow the command of the
statutory provisions and be guided by the precedents and issue directions
which are permissible in law. We are of the convinced opinion that the
observations made by the learned Single Judge while dealing with second
application under Section 438 CrPC were not at all warranted under any
circumstance as it was neither in consonance with the language employed in
Section 438 CrPC nor in accord with the established principles of law
relating to grant of anticipatory bail. We may reiterate that the said
order has been interpreted by this Court as an order only issuing a
direction to the accused to surrender, but as we find, it has really
created colossal dilemma in the mind of the learned Additional Sessions
Judge. We are pained to say that passing of these kind of orders has become
quite frequent and the sagacious saying, “a stitch in time saves nine” may
be an apposite reminder now. We painfully part with the case by saying so.”

18. At this juncture, we are obliged to refer to the decision in Hema
Mishra v. State of Uttar Pradesh and Ors.[22] . In the said judgment, the
Court was dealing with the power of the High Court of Allahabad pertaining
to grant of pre-arrest bail in exercise of extraordinary or inherent
jurisdiction and it is significant, for in the State of Uttar Pradesh
Section 438 CrPC has been deleted by the State Legislature. Be it noted
that constitutional validity of the said deletion was challenged before the
Constitution Bench in Kartar Singh v. State of Punjab[23] wherein it has
been held that deletion of the application of Section 438 CrPC in the State
of Uttar Pradesh is constitutional. The Constitution Bench has ruled held
that claim for pre-arrest protection is neither a statutory nor a right
guaranteed under Article 14, Article 19 or Article 21 of the Constitution
of India. The larger Bench has further observed thus:-
“368. (17) Though it cannot be said that the High Court has no jurisdiction
to entertain an application for bail under Article 226 of the Constitution
and pass orders either way, relating to the cases under the 1987 Act, that
power should be exercised sparingly, that too only in rare and appropriate
cases in extreme circumstances. But the judicial discipline and comity of
courts require that the High Courts should refrain from exercising the
extraordinary jurisdiction in such matters.”

19. The Allahabad High Court has taken similar view in several judgments,
namely, Satya Pal v. State of U.P.[24], Ajeet Singh v. State of U.P.[25],
Lalji Yadav v. State of U.P.[26], Kamlesh Singh v. State of U.P.[27] and
Natho Mal v. State of U.P.[28].
20. In Hema Mishra (supra) the Court referred to the decision in
Amarawati v. State of U.P.[29] which has been affirmed by this Court in
Lal Kamlendra Pratap Singh v. State of U.P.[30]. In Lal Kamlendra Pratap
Singh (supra) it has been held thus:-
“6. The learned counsel for the appellant apprehends that the appellant
will be arrested as there is no provision for anticipatory bail in the
State of U.P. He placed reliance on a decision of the Allahabad High Court
in Amarawati v. State of U.P. (supra) in which a seven-Judge Full Bench of
the Allahabad High Court held that the court, if it deems fit in the facts
and circumstances of the case, may grant interim bail pending final
disposal of the bail application. The Full Bench also observed that arrest
is not a must whenever an FIR of a cognizable offence is lodged. The Full
Bench placed reliance on the decision of this Court in Joginder Kumar v.
State of U.P.[31]”

21. After referring to the same, Radhakrishnan, J. opined thus:-
“I may, however, point out that there is unanimity in the view that in
spite of the fact that Section 438 has been specifically omitted and made
inapplicable in the State of Uttar Pradesh, still a party aggrieved can
invoke the jurisdiction of the High Court under Article 226 of the
Constitution of India, being extraordinary jurisdiction and the vastness of
the powers naturally impose considerable responsibility in its application.
All the same, the High Court has got the power and sometimes duty in
appropriate cases to grant reliefs, though it is not possible to pinpoint
what are the appropriate cases, which have to be left to the wisdom of the
Court exercising powers under Article 226 of the Constitution of India.”

22. Sikri, J. in his concurring opinion stated that though the High
Courts have very wide powers under Article 226, the very vastness of the
powers imposes on it the responsibility to use them with circumspection and
in accordance with the judicial consideration and well-established
principles, so much so that while entertaining writ petitions for granting
interim protection from arrest, the Court would not go on to the extent of
including the provision of anticipatory bail as a blanket provision. It
has been further observed that such a power has to be exercised very
cautiously keeping in view, at the same time, that the provisions of
Article 226 are a device to advance justice and not to frustrate it. The
powers are, therefore, to be exercised to prevent miscarriage of justice
and to prevent abuse of process of law by the authorities indiscriminately
making pre-arrest of the accused persons. In entertaining such a petition
under Article 226, the High Court is supposed to balance the two interests.
On the one hand, the Court is to ensure that such a power under Article 226
is not to be exercised liberally so as to convert it into Section 438 CrPC
proceedings, keeping in mind that when this provision is specifically
omitted in the State of Uttar Pradesh, it cannot be resorted to as back
door entry via Article 226. On the other hand, wherever the High Court
finds that in a given case if the protection against pre-arrest is not
given, it would amount to gross miscarriage of justice and no case, at all,
is made for arrest pending trial, the High Court would be free to grant the
relief in the nature of anticipatory bail in exercise of its power under
Article 226 of the Constitution. Keeping in mind that this power has to be
exercised sparingly in those cases where it is absolutely warranted and
justified.
23. We have referred to the authority in Hema Mishra (supra) as that
specifically deals with the case that came from the State of Uttar Pradesh
where Section 438 CrPC has been deleted. It has concurred with the view
expressed in Lal Kamlendra Pratap Singh (supra). The said decision,
needless to say, has to be read in the context of State of Uttar Pradesh.
We do not intend to elaborate the said principle as that is not necessary
in this case. What needs to be stated here is that the States where
Section 438 CrPC has not been deleted and kept on the statute book, the
High Court should be well advised that while entertaining petitions under
Article 226 of the Constitution or Section 482 CrPC, exercise judicial
restraint. We may hasten to clarify that the Court, if it thinks fit,
regard being had to the parameters of quashing and the self-restraint
imposed by law, has the jurisdiction to quash the investigation and may
pass appropriate interim orders as thought apposite in law, but it is
absolutely inconceivable and unthinkable to pass an order of the present
nature while declining to interfere or expressing opinion that it is not
appropriate to stay the investigation. This kind of order is really
inappropriate and unseemly. It has no sanction in law. The Courts should
oust and obstruct unscrupulous litigants from invoking the inherent
jurisdiction of the Court on the drop of a hat to file an application for
quashing of launching an FIR or investigation and then seek relief by an
interim order. It is the obligation of the court to keep such unprincipled
and unethical litigants at bay.
24. It has come to the notice of the Court that in certain cases, the
High Courts, while dismissing the application under Section 482 CrPC are
passing orders that if the accused-petitioner surrenders before the trial
magistrate, he shall be admitted to bail on such terms and conditions as
deemed fit and appropriate to be imposed by the concerned Magistrate.
Sometimes it is noticed that in a case where sessions trial is warranted,
directions are issued that on surrendering before the concerned trial
judge, the accused shall be enlarged on bail. Such directions would not
commend acceptance in light of the ratio in Rashmi Rekha Thatoi (supra),
Gurbaksh Singh Sibbia (supra), etc., for they neither come within the sweep
of Article 226 of the Constitution of India nor Section 482 CrPC nor
Section 438 CrPC. This Court in Ranjit Singh (supra) had observed that the
sagacious saying “a stitch in time saves nine” may be an apposite reminder
and this Court also painfully so stated.
25. Having reminded the same, presently we can only say that the types of
orders like the present one, are totally unsustainable, for it is contrary
to the aforesaid settled principles and judicial precedents. It is
intellectual truancy to avoid the precedents and issue directions which are
not in consonance with law. It is the duty of a Judge to sustain the
judicial balance and not to think of an order which can cause trauma to the
process of adjudication. It should be borne in mind that the culture of
adjudication is stabilized when intellectual discipline is maintained and
further when such discipline constantly keeps guard on the mind.
26. In view of the aforesaid premises, we allow the appeal, set aside the
impugned order of the High Court and direct that the investigation shall
proceed in accordance with law. Be it clarified that we have not expressed
anything on any of the aspects alleged in the First Information Report.

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

............................ J.
[Amitava Roy]
New Delhi;
January 06, 2017
-----------------------
[1] AIR 1945 PC 18
[2] (2014) 2 SCC 1
[3] AIR 1992 SC 604
[4] (2005) 6 SCC 1
[5] (1970) 1 SCC 595
[6] (2003) 6 SCC 175
[7] (1972) 1 SCC 452
[8] AIR 1974 SC 1146
[9] (1977) 4 SCC 137 : AIR 1977 SC 2185
[10] (1977) 4 SCC 451 : AIR 1977 SC 2229
[11] AIR 1980 SC 326
[12] AIR 1982 SC 949
[13] AIR 1976 SC 1947
[14] (1988) 1 SCC 692 : AIR 1988 SC 709
[15] (1988) 4 SCC 655 : AIR 1989 SC 1
[16] (2012) 5 SCC 690
[17] (1980) 2 SCC 565 : AIR 1980 SC 1632
[18] (2009) 8 SCC 325
[19] (2006) 13 SCC 737
[20] (2006) 1 SCC 479
[21] (2013) 16 SCC 797
[22] (2014) 4 SCC 453
[23] (1994) 3 SCC 569
[24] 2000 Cri LJ 569 (All)
[25] 2007 Cri LJ 170 (All)
[26] 1998 Cri LJ 2366 (All)
[27] 1997 Cri LJ 2705 (All)
[28] 1994 Cri LJ 1919 (All)
[29] 2005 Cri LJ 755 (All)
[30] (2009) 4 SCC 437
[31] (1994) 4 SCC 260

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Wednesday, January 18, 2017

Wednesday, January 11, 2017

Tuesday, January 10, 2017