The landowners further relied on the case of Girnar Traders Vs. State of Maharashtra and Others[1] to contend that the land is deemed to have been released after 6 months of the issue of Notice u/s 127 of the MRTP Act. The contention of the landowners cannot be accepted for the reason that the decision relied by the landowners to contend that no steps were taken relates to the ‘Development Plan’ for which the steps for acquisition had to be taken as per Section 126. In the present case, before the scheme is implemented, the procedure contemplated under Chapter V is followed to finalise the scheme. The procedure includes the sanctioning of draft scheme, appointment of arbitrator, issuing notices to persons affected by the scheme, determination of compensation by the arbitrator and then the final award made by the arbitrator. In respect of the land required under Town Planning Scheme except the Development Plan, the steps under Section 126 may not require to be resorted to at all. It is clear from the record that the Draft Town Planning Scheme was published in 1976, arbitrator determined the compensation in 1980, the appeal filed before the Tribunal was dismissed in 1987 and the scheme was sent to the Government for sanction in 1988 and it was finally sanctioned in 1993 by following the procedure under Chapter V which is a self contained code for the implementation of the Town Planning Scheme.

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO. 491 OF 2007

Pukhrajmal Sagarmal Lunkad (D)
Through his L.Rs. and others etc.            … Appellants

                                   Versus

The Municipal Council, Jalgaon
and others                                   …Respondents


                               J U D G M E N T

Prafulla C. Pant, J.


This appeal is directed against judgment and order dated 23.12.2004,  passed
by the High Court of Judicature of  Bombay,  Bench  at  Aurangabad,  whereby
said Court has dismissed the Writ Petition No. 1924 of 1992.   And  for  the
reasons given in the said order, the other two Writ Petition  Nos.  1925  of
1992 and 1228 of 2001 were also dismissed.

In the above Writ Petitions (Nos. 1924 of  1992  and  1925  of  1992),  Town
Planning Scheme in respect of survey  No.  431/A  (new  plot  No.  287)  and
survey No. 431/B (new plot No. 288)  situated  at  Mehrun  area  within  the
limits of Municipal Council Jalgaon,  was sought to be quashed.

Brief facts of the case  are  that  appellants  were  admittedly  owners  of
survey No. 431/A-1, A-2 and A-3  and  survey  No.  431/B.    On  15.12.1971,
Jalgaon  Municipal  Council  which  is  a  Planning  Authority   under   the
Maharashtra Regional and Town Planning Act, 1966  (for  short  “MRTP  Act”),
published Draft Development Plan in respect of certain lands  including  the
aforementioned plots owned by the  appellants  and  reserved  the  same  for
public purpose, renumbering them as plot No. 288  in  reservation  site  No.
107 (for garden) and plot No. 287 reserved in site Nos.  104  and  105  (for
the purposes of construction of library,  maternity  home  and  dispensary).
Final Development Plan was sanctioned in respect of above  area  which  came
into operation on 16.12.1974.  According to the  appellants,  this  date  is
the starting point for taking steps for acquisition within a period  of  ten
years under MRTP Act, as the owners got restricted/prevented  from  carrying
out any developmental activities over their land.  It  is  pleaded  by  them
that the procedure for acquisition of the land reserved for  public  purpose
is provided under Chapter VII, which allowed at the relevant point  of  time
only two modes of acquisition under Section 126 (1) of the MRTP Act,  namely
– (i) by  agreement,  and  (ii)  by  making  an  application  to  the  State
Government for acquiring such land under Land Acquisition Act, 1894.

Section 127 of the MRTP Act, provides that if any  land  reserved,  allotted
or designated for any purpose specified in any plan under the  Act,  is  not
acquired by agreement within ten years from the  date  on  which  the  final
Regional Plan or final Development Plan came into force  or  if  proceedings
under Land Acquisition Act, 1894, are not commenced within such period,  the
owner or any person  interested  in  the  land,  may  serve  notice  on  the
Planning Authority, Development Authority or Appropriate Authority,  as  the
case may be, and if within six months  of  such  notice,  the  land  is  not
acquired or no steps, as aforesaid, are commenced for the  acquisition,  the
reservation, allotment or designation shall be deemed to  have  lapsed,  and
thereupon the land shall be deemed to  be  released  from  the  reservation,
allotment or designation, and shall become available to the  owner  for  the
purpose of development as otherwise permissible  in  the  case  of  adjacent
land under the relevant plan.

The appellants’ case is that on 15.12.1984 ten years stood expired from  the
date coming into operation of final Development Plan,  and  the  respondents
failed to acquire the land.  As such, the  original  appellants/land  owners
sent a notice under Section 127 of the MRTP Act to the  Planning  Authority,
Jalgaon Municipal Council on 7.10.1986,  but  even  after  receipt  of  such
notice, the Municipal Council failed to take steps for  acquisition  of  the
appellants’ land reserved for  public  purpose  within  the  period  of  six
months, and consequently, the land  stood  released  from  the  reservation.
But when in spite of repeated representations no orders were passed  by  the
Planning Authority releasing the land, the appellants  filed  Writ  Petition
Nos. 1924 of 1992  and  1925  of  1992  qua  survey  Nos.  431/A  and  431/B
respectively, seeking writ of mandamus  to  quash  the  reservation  of  the
appellants’ land for Town Planning Scheme.

On the other hand, on behalf of  the  Planning  Authority/Jalgaon  Municipal
Council, it is stated that  larger  area  of  land  including  the  land  in
question was subsequently reserved on 09.09.1976 for public  purposes  under
the Town Planning Scheme III, and Sections 126 and 127 of MRTP Act  have  no
application in the present case.  The scheme started way back year  in  1976
and  Arbitrator  was  appointed  under  the  Act  and  he  passed  award  on
20.03.1980 and compensation of ?1,20,000/- for plot no. 287 (Old  No.  431A)
and ?1,51,700/- for plot no. 288 (old No. 431B) was determined.  The  appeal
to the Tribunal regarding compensation was dismissed. It is  further  stated
that the land stood vested under Section 88 of the MRTP Act.  On  behalf  of
the respondents, it is also pointed out that advance possession of the  land
was voluntarily delivered by the appellants  to  the  Municipal  Council  on
21.2.1981 and compensation  determined  by  the  Arbitrator  was  deposited.
(Appellants have responded to the above plea by  stating  that  the  advance
possession was delivered only in respect of a small strip of land  used  for
twenty feet wide road).

It is not out of context to mention here that the revised  Development  Plan
for Town Planning Scheme No. III was submitted by the Municipal  Council  on
01.03.1988, which the State Government sanctioned on 06.01.1993 and in  said
scheme the land in question was reserved  for  “civic  centre”.   The  State
Government   approved   the   said   final   Town   Planning    Scheme    on
29.5.1993/31.5.1993.  It has also come on record that at one stage,  on  the
representation of the appellants in the year  1984,  the  Municipal  Council
submitted proposal for deletion of land  from  reservation  for  development
plan, but the same was rejected by the State Government.

The High Court, after hearing the parties, opined that the Development  Plan
proposals are executed by the local  authority  either  by  compulsory  land
acquisition,  or  by  preparing  and  executing  Town  Planning  Scheme  for
different parts of the town so that when  all  proposals  are  carried  out,
there would be harmony and the town is developed  in  planned  manner.   The
High Court further observed that in making a Town Planning Scheme the  lands
of all persons covered by the Scheme are treated as if they are to be  in  a
pool.  The Town Planning Officer then proceeds  to  reconstitute  the  plots
for residential buildings and reserves certain lands  for  public  purposes.
The reconstituted plots are allotted to land owners  with  change  in  shape
and size.  The Arbitrator under the MRTP Act lays out  new  roads,  reserves
land for recreation grounds,  schools,  markets,  green  belts  and  similar
public purposes.  The object of the Scheme being  so  to  provide  amenities
and benefit to the residents, the area  in  occupation  of  individual  land
holders is reduced.  The result is that there is shifting of plots of  land,
roads, means of communication.  As such, the rearrangement of titles in  the
various plots requires financial adjustments to be made and the  owners  who
are deprived of their land are compensated.  The High Court, discussing  the
provisions of Bombay Town Planning Act and that of the MRTP  Act,  has  held
that Section 126 of  MRTP  Act  providing  for  acquisition  could  only  be
resorted to, in relation to the cases covered by  exclusionary  clause  used
in Section 88 (a) of the Act, and it further held that Section 127 does  not
apply to lands reserved for public purpose under Town Planning Scheme,  and,
as such, there is no lapsing of reservation of land  under  Section  127  of
the Act, and dismissed the writ petitions.

We have examined the matter  and  considered  the  rival     submissions  of
learned counsel for the parties.

Before further discussion, we think it just and  proper  to  look  into  the
definitions of ‘Development Plan’ and ‘Town Planning Scheme’.  Section  2(9)
of MRTP Act defines the term ‘Development Plan’ and reads as under:
‘Development Plan’ means a Plan for the  Development  or  re-development  of
the area within the  jurisdiction  of  a  Planning  Authority  and  includes
revision of development plan and proposals of a Special  Planning  Authority
for development of land within its jurisdiction’.


The expression Town Planning Scheme is not defined in the Act but under sub-
section 2(30) the word ‘Scheme’ is defined as:
‘Scheme’ includes a plan relating to a Town Planning Scheme’.

According to concise Oxford English Dictionary ‘scheme’ means  a  systematic
plan or arrangement for  attaining  some  particular  object  or  putting  a
particular idea into effect. In the same dictionary, term  ‘planning’  means
planning and control of the construction, growth, and development of a  town
or other urban area. As such, we may say that  the  term  ‘Planning  Scheme’
means, a systematic plan with an object  of  planning  and  control  of  the
construction, growth and development of a town. We also  think  it  relevant
to mention here that Development Plans are dealt  with  under  Chapter  III,
and Town Planning Schemes are dealt  with  under  Chapter  V  of  MRTP  Act.
Section 126 of the Act which is part of Chapter VII,  deals  with  Plans  as
well as Schemes, but Section 127 does not refer to Town Planning Schemes.

Effect of final Town Planning Scheme is provided in Section 88 of  the  MRTP
Act which reads (as it existed before 2014), as under:

“88. Effect of final scheme - On and after the day on which a  final  scheme
comes into force-

all lands required by the Planning Authority shall, unless it  is  otherwise
determined in such scheme, vest absolutely in the  Planning  Authority  free
from all encumbrances;

 all rights in the  original  plots  which  have  been  reconstituted  shall
determine, and the reconstituted plots shall become subject  to  the  rights
settled by Arbitrator;

the Planning Authority shall hand over possession of the final plots to  the
owners to whom they are allotted in the final scheme.”


It is stated that draft Development Plan relating to plots in  question  was
initially  published  on  15.12.1971  which  was  sanctioned  by  the  State
Government on 11.04.1974 and finally Development  Plan  was  operationalised
on 16.12.1974. But the Town Planning Scheme based on  the  said  Development
Plan relating to the plots in question is stated to have  been  prepared  on
09.09.1976,    and    thereafter     finalized     and     sanctioned     on
29.05.1993/31.05.1993.

Learned counsel for the appellants argued that the Town Planning Scheme  was
approved by the State Government  in  January,  1993,  based  on  a  revised
Development Plan submitted by the Municipal Council  in  1988,  i.e.,  after
reservation of land in question already stood lapsed as the land owners  had
served the notice under Section 127  of  MRTP  Act  on  07.10.1986  and  six
months period  had  passed  thereafter.  This  argument  on  scrutiny  lacks
substance for the reason that the land in  question  was  reserved  in  1976
under Town Planning  Scheme  III.  We  have  already  discussed  above  that
Section 127 does not refer to Town Planning Schemes.

In the present case the prayer  is  made  by  the  appellants  in  the  Writ
Petitions specifically in respect of Town Planning  Scheme  No.  III,  which
was finally sanctioned, as such, we find no error in the  impugned  judgment
passed by the High Court dismissing the Writ Petitions.  From  the  copy  of
special notice dated 25.04.1980 in form No. 4  issued  under  Town  Planning
Scheme Rules (filed as Annexure-B with the additional  documents)  and  copy
of order dated 16.05.1980 passed by the Arbitrator in the  aforesaid  rules,
it is clear that the compensation was  determined  in  respect  of  land  in
question under Town Planning Scheme. The decision of the Arbitrator  appears
to have been published in the Official Gazette dated 20th August, 1980,  and
appeal was dismissed.  In the circumstances, we find no error in  the  order
passed by the High Court.

The landowners further relied on the case of Girnar  Traders  Vs.  State  of
Maharashtra and Others[1]  to contend that the land is deemed to  have  been
released after 6 months of the issue of Notice u/s 127 of the MRTP Act.  The
contention of the landowners cannot be accepted  for  the  reason  that  the
decision relied by the landowners  to  contend  that  no  steps  were  taken
relates to the ‘Development Plan’ for which the steps  for  acquisition  had
to be taken as per Section 126. In the present case, before  the  scheme  is
implemented, the procedure contemplated  under  Chapter  V  is  followed  to
finalise the  scheme.  The  procedure  includes  the  sanctioning  of  draft
scheme, appointment of arbitrator, issuing notices to  persons  affected  by
the scheme, determination of compensation by the  arbitrator  and  then  the
final award made by the arbitrator. In respect of the  land  required  under
Town Planning Scheme except the Development Plan, the  steps  under  Section
126 may not require to be resorted to at all. It is clear  from  the  record
that the Draft Town  Planning  Scheme  was  published  in  1976,  arbitrator
determined the compensation in 1980, the appeal filed  before  the  Tribunal
was dismissed in 1987  and  the  scheme  was  sent  to  the  Government  for
sanction in 1988 and it was finally sanctioned  in  1993  by  following  the
procedure  under  Chapter  V  which  is  a  self  contained  code  for   the
implementation of the Town Planning Scheme.

For the reasons as discussed above,  we  do  not  find  any  force  in  this
appeal. Accordingly, the same is dismissed. No order as to costs.


                                                              ………………………………J.
                                                            [Madan B. Lokur]



                                                              ………………………………J.
                                                          [Prafulla C. Pant]
New Delhi;
February 03, 2017.

-----------------------
[1]     (2007) 7 SCC 555

in Saij Gram Panchayat vs. State of Gujarat and others, 1999 (2) SCC 366, where this Court had occasion to consider the proviso to Article 243-Q sub-clause (1) in the context of Gujarat Industrial Development Act, 1962. After insertion of Part IX-A in the Constitution, the Gujarat Municipalities Act, 1962 was also amended by adding Section 264-A. It was provided under Section 264-A that notified area means an urban area or part thereof specified to be an industrial township area under the proviso to Article 243-Q(1) of the Constitution of India. Paragraphs 10 and 11 of the judgment are extracted below: "10. The Gujarat Municipalities Act, 1962 was amended on 20-8-1993 in view of the insertion of Part IX-A in the Constitution. Section 264-A was substantially amended. It now provided: “264-A. For the purpose of this chapter, notified area means an urban area or part thereof specified to be an industrial township area under the proviso to clause (1) to Article 243-Q of the Constitution of India.” Thus, as a result of this amendment in the Gujarat Municipalities Act, as industrial area under the Gujarat Industiral Development Act, which is notified under Section 16 of the Gujarat Industrial Development Act, would become a notified area under the new Section 264-A of the Gujarat Municipalities Act and would mean an industrial township area under the proviso to clause(1) of Article 243-Q of the Constitution of India. 11. On 7-9-1993, the Government of Gujarat issued a notification under Section 16 of the Gujarat Industrial Development Act declaring Kalol Industrial Area as a notified area under Section 264-A of the Gujarat Municipalities Act. By another notification of the same date 7-9-1993, the Government of Gujarat excluded the notified area from Saij Gram Panchayat under Section 9(2) of the Gujarat Panchayats Act, 1961.” Thus, for treating industrial area as industrial township notification under proviso to Article 243-Q(1) was contemplated which is also the statutory scheme under the 1976 Act. 17. In view of the aforegoing discussion, we are of the view that it was rightly held by the High Court that exemption under Article 12-A of the 1976 Act was not available in the facts of the above case. The appellants were not entitled for the reliefs claimed in the writ petition. In the result, the appeal is dismissed.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 1362  OF 2017
                   (arising out of SLP(C)No.25529 of 2014)

MGR INDUSTRIES ASSOCIATION AND ANR.      … APPELLANTS

                                   VERSUS

STATE OF U.P. AND ORS.                  … RESPONDENTS




                               J U D G M E N T


ASHOK BHUSHAN, J.

      Leave granted.

2.    This appeal has been filed against the judgment and order  dated  17th
July, 2014 of High Court of Judicature at Allahabad by which judgment  Civil
Misc.Writ (Tax) No.447 of 2014 filed by the appellants has been dismissed.

3.    The brief facts of the case are:
      Appellant No.1 is  an  Industries  Association  registered  under  the
Societies  Registration  Act,  1860  whose   members   are   running   small
industries. Zila Panchayat, Hapur initiated proceedings for  realisation  of
tax for members of the appellant -Association which was objected  to  and  a
representation was submitted to  the  District  Magistrate.  Appellant  also
represented the  matter  to  the  Upper  Mukhya  Adhikari,  Zila  Panchayat,
Bulandshehar and filed a Civil Misc. Writ Petition (Tax) No.4 of 2013  which
was disposed of by the Allahabad High Court  by  order  dated  6th  January,
2014,  directing  the  State  Government   to   consider   the   appellant's
representation. The representation submitted by the appellant  was  rejected
by the Principal Secretary, Panchayat Raj vide its order dated  23rd   June,
2014. The State Government held that although the area has been declared  as
industrial area under U.P. Indusrial Area  Development  Act,  1976   but  no
notification having been issued as industrial township  within  the  meaning
of   Article 243-Q(1) proviso of the Constitution, the Zila  Panchayat/Nagar
Panchayat is entitled to realise tax and appellants cannot  claim  exemption
from taxation by local authority.  Aggrieved  by  the  order  of  the  State
Government, appellants filed  a  Civil  Misc.  Writ  (Tax)  No.447  of  2014
claiming the following reliefs:
"A.   Call for the records of the case; and issue writ, order  or  direction
in the nature of certiorari quashing the order  dated  23-6-2014  passed  by
respondent No.1 (Annexure 8 to this writ petition).

B.    Issue writ, order or direction in the  nature  of  mandamus  directing
the respondent Nos.2, 3 and 4 not to realise any taxes from the  members  of
petitioner No.1 (as mentioned in paragraph No.10 of the  writ  petition  and
other members of petitioner No.1).

C.    Issue any other writ, order or direction the Hon'ble Court deems  just
and proper on the facts and circumstances of the case.

D.    Award cost of this petition to the petitioner.”


4.    The writ petition was heard  by  the  High  Court  and  the  same  was
dismissed by its judgment dated 17th July, 2014. The Division Bench  of  the
High Court relying on an earlier Division Bench judgment in Rishipal &  Ors.
vs. State of U.P. & Ors., 2006 (1) AWC 426,  dismissed  the  writ  petition.
The Division Bench also held that the  area  having  not  been  declared  as
industrial township, exemption as sought to be  claimed  by  the  appellants
under Section 12-A of 1976 Act is misconceived. Aggrieved  by  the  judgment
of the High Court, the appellants have filed this appeal.
5.    We have heard Ms. Meenakshi Arora,  learned  senior  counsel  for  the
appellants, Mr. Aviral Saxena has appeared on behalf of respondent No.5.  We
have also heard learned  counsel appearing for the State of U.P.

6.    Learned counsel for the  appellant  contends  that  area  in  question
having been declared as industrial area by  issuing   a  notification  dated
5th September, 2001  in  exercise  of  power  under  Section  2(d)  of  U.P.
Indusrial Area Development Act,  1976  (hereinafter  referred  to  as  '1976
Act').  The  appellants  are  entitled  for  the  benefit  of  exemption  as
contemplated by Section 12-A of the 1976 Act and by virtue of  Section  12-A
no Panchayat is to be  constituted  for  the  said  area.  Hence,  the  Zila
Panchayat is not entitled  to  realise  any  tax  under  the  Uttar  Pradesh
Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961.
7.    The Authority constituted under  the  1976  Act  fully  satisfied  the
condition  under  Section  12-A  of  the  1976  Act,  hence,  there  is   no
requirement of  issue  of  any  separate  notification  as  contemplated  by
Article 243-Q of the Constitution  of  India.  It  is  submitted  that  once
industries have been set up under the notified industrial  development  area
and taxes under Section 11 of the 1976 Act are levied,  the  industries  are
exempted from liability of any tax under 1976 Act  and  the  appellants  are
put on double jeopardy.
8.    Learned  counsel  appearing  for  the  State  of  U.P.  refuting   the
submission of learned counsel for the appellants contended  that  the  State
Government by its detailed order dated 23rd June, 2014  after  referring  to
all relevant provisions  of  1976  Act  has  found  that  unless  industrial
township is notified the provisions of Section 12-A are  not  attracted.  It
has been stated by the State that no  notification  notifying  the  area  as
industrial township has yet been issued. Learned counsel appearing  for  the
U.P. State Industrial Development  Corporation  submits  that  in  the  writ
petition  the  appellants  have  only  prayed   for   mandamus   restraining
respondent Nos.2 to 4 from realising any tax. No relief having been  claimed
against respondent No.5 the writ petition has rightly been dismissed by  the
High Court.

9.    We have considered the submission made by the learned counsel for  the
parties and perused the records.
10.   The U.P. Industrial Area Development Act, 1976  has  been  enacted  to
provide for the constitution of an authority for the development of  certain
area in the  State  into  industrial  township  and  for  matters  connected
therewith. Section 2 sub-section (d)  defines  industrial  development  area
which is to the following effect:
“Section 2(d)- “industrial development area” means an area declared as  such
by the State Government by notification.”

11.    Under  Section  3,  the  State  Government,  by   notification,   can
constitute an Authority to be called Industrial  Development  Authority  for
industrial development area.  By  notification  dated  5th  September,  2001
which is in exercise of power under Section 2(d) of the  1976  Act,  various
areas as mentioned in the Schedule were declared as  industrial  development
areas. There is no dispute that  area  in  question  has  been  declared  as
industrial development area. The claim which  has  been  laid  in  the  writ
petition before the High Court by the  appellants  was  for  exemption  from
taxation by Zila Panchayat, Hapur under Section 12-A. Section 12-A  of  1976
Act which has been added by U.P. Act 4 of 2001 is as under:
"Section  12-A.  NO  panchayat  for  industrial  township.-  Notwithstanding
anything contained to  the  contrary  inany  Uttar  Pradesh  Act,  where  an
industrial development area or any  part  thereof  is  specified  to  be  an
industrial township under the proviso to clause (1) of Article 243-Q of  the
Constitution, such industrial development area or part thereof, if  included
in a Panchayat area, shall, with effect from the date of  notification  made
under the said proviso, stand excluded  from  such  Panchayat  area  and  no
Panchayat shall be constituted for such industrial developmentarea  or  part
thereof under the United Provinces Panchayat Raj  Act,  1947  or  the  Uttar
Pradesh Kshettra Panchayats and Zila  Panchayats  Adhiniyam,  1961,  as  the
case may be, and may Panchayat constituted for such  industrial  development
area or part thereof before the date of such  notification  shall  cease  to
exist.”

1

12.   Zila Panchayat, Hapur against whom reliefs have been  claimed  by  the
appellants, is Zila Panchayat constituted under the  Uttar  Pradesh  Kshetra
Panchayats and Zila Panchayats Adhiniyam,  1961  as  amended  from  time  to
time.

13.   Part IX A was inserted by the Constitution (Seventy-fourth  Amendment)
Act, 1992. Article  243-Q is contained in Part  IX  A  of  the  Constitution
dealing with Municipalities which provides as follows:

“243Q. Constitution of Municipalities.- (1)There  shall  be  constituted  in
every State,-

(a) a Nagar Panchayat (by whatever name called)  for  a  transitional  area,
that is to say, an area in transition from a rural area to an urban area;

(b) a Municipal Council for a smaller urban area; and

(c) a Municipal Corporation for a larger urban area, in accordance with  the
provisions of this Part:

     Provided that a Municipality under this clause may not  be  constituted
in such urban area or part thereof as the Governor  may,  having  regard  to
the size of the area and the municipal services being provided  or  proposed
to be provided by an industrial establishment in that area  and  such  other
factors as he may  deem  fit  by  public  notification,  specify  to  be  an
industrial township.

2.    In this article, "a transitional area", "a smaller urban area"  or  "a
larger urban area" means such area as the Governor  may,  having  regard  to
the population of the area, the  density  of  the  population  therein,  the
revenue generated for local administration, the percentage of employment  in
non-agricultural activities, the economic importance or such  other  factors
as he may deem fit, specify by public notification for the purposes of  this
Part.”


14.   Article 243-Q mandates constitution of a municipality in every  State,
constitution  of  Nagar   Panchayat,   Municipal   Council   and   Municipal
Corporation in every State respectively for a transitional area,  a  smaller
urban area and a larger urban area respectively.  The  provisio  to  Article
243-Q(1) contemplates a circumstance where a Municipality under Article 243-
Q(1) may not be constituted in an urban area  or  part  thereof,  when  such
area  is  specified  by  a  notification  having  regard  to  the  following
circumstances:
 "(i) Having regard to the size of the area,

(ii)  Municipal services being provided or proposed to be provided  in  that
area, and

(iii) such other factors as may deem fit.”

Thus, exemption from non-constitution  of  Municipality  is  dependent  upon
consideration of aforesaid factors and a public notification thereof.
15.   Section 12-A has been inserted in the 1976  Act   in  consonance  with
proviso to  Article  243-Q(1).   Section  12-A  specifically  provides  that
“....where  an industrial development area or any part thereof is  specified
to be an industrial township under the proviso to clause (1) of Article 243-
Q of the Constitution, such industrial development area or part thereof,  if
included  in  a  Panchayat  area,  shall,  with  effect  from  the  date  of
notification  made  under  the  said  proviso,  stand  excluded  from   such
Panchayat area and no Panchayat shall be  constituted  for  such  industrial
development area or part thereof.......”. Section  12-A  thus,  specifically
contemplates issuance  of  notification  under  proviso  to  clause  (1)  of
Article 243-Q and exclusion from Panchayat area is consequent and  dependent
upon such  notification.  Notification   under  proviso  to  clause  (1)  of
Article 243-Q has to be subsequent to declaration of an area as   industrial
development area, which itself indicates  that  declaration  of  development
area under 1976 Act is not sufficient to treat  an  area  as  an  industrial
township. As noted above, industrial township  as  contemplated  by  Article
243-Q(1)  proviso  has  to  be  specifically  a  public  notification  after
consideration  of  relevant  statutory  ingredients  referred  therein.  The
exclusion of industrial  development  area  from  Panchayat  has  a  serious
consequence since persons residing within the  industrial  development  area
are immediately deprived of facilities and benefits extended to them by  the
respective Panchayats. The deprivation of the said benefits has to  be  thus
a conscious decision in accordance with condition as  contained  in  Article
243-Q. In the case before us, it has not been pleaded that any  notification
referable to proviso to Article 243(Q)(1) has yet been issued. The  Division
Bench of the High Court has also referred to  and  relied  upon  an  earlier
judgment of the Allahabad High Court  in  Rishipal  (supra).  In  the  above
case, the appellants who  were  residents  of  industrial  development  area
prayed for direction that no election for constituting Panchayat in  various
villages including the said industrial development area  should  be  allowed
since, notification under Section 2(d) of the  1976  Act  has  already  been
issued on 11th July, 1989. The State Government  categorically  stated  that
no notification under proviso to  Article  243-Q(1)  has  been  issued.  The
Division Bench of the High Court referring to Section 12-A has rejected  the
contention and  dismissed  the  writ  petition.  In  paragraphs  6,7  and  8
following was stated:

“6. From a plain reading of Section 12A of the Act it is  clear  that  after
declaration of any industrial development area u/s. 2  (d)  of  the Act  two
things are required for excluding them from existing panchayat  area.  First
is, specification to be an industrial township and secondly  a  notification
under Proviso to Article 243Q of the Constitution of India.



7. From Section 12A it further reveals that if the said area is included  in
panchayat area, such area with effect from the  date  of  notification  made
under  proviso  (proviso  to  Article  243Q)  stands  excluded   from   such
panchayat. Thus, specification to be an industrial township  as  well  as  a
notification under proviso to  Article  243Q  are  condition  precedent  for
excluding from any panchayat area. There is nothing on the  record  to  come
to conclusion that the area in question has been specified as an  industrial
township. Further no notification, as stated by Chief Standing Counsel,  has
been issued under proviso to Article 243Q by the  State  Government,  hence,
question of exclusion of the area from panchayat area does not arise.

8. Merely because the villages in question are covered u/s. 2 (d)  does  not
ipso fActo exclude them from panchayat area. As noted above neither  it  has
been specified as Industrial Township nor a notification under Article  243Q
has been issued. The relief claimed by  the  writ  petitioner  in  the  writ
petition cannot be granted.”







16.   It shall also be relevant to refer the judgment of this Court in  Saij
Gram Panchayat vs. State of Gujarat and others,  1999  (2)  SCC  366,  where
this Court had occasion to consider the proviso to Article 243-Q  sub-clause
(1) in the context  of  Gujarat  Industrial  Development  Act,  1962.  After
insertion of Part IX-A in the Constitution, the Gujarat Municipalities  Act,
1962  was also amended by  adding  Section  264-A.  It  was  provided  under
Section 264-A that notified  area  means  an  urban  area  or  part  thereof
specified to be an industrial township area under  the  proviso  to  Article
243-Q(1) of the  Constitution  of  India.   Paragraphs  10  and  11  of  the
judgment are extracted below:
"10. The Gujarat Municipalities Act, 1962 was amended on 20-8-1993  in  view
of the insertion of  Part  IX-A  in  the  Constitution.  Section  264-A  was
substantially amended. It now provided:

      “264-A. For the purpose of this chapter, notified area means an  urban
area or part thereof specified to be an industrial township area  under  the
proviso to clause (1) to Article 243-Q of the Constitution of India.”

Thus, as a result of this amendment in the Gujarat  Municipalities  Act,  as
industrial area under the  Gujarat  Industiral  Development  Act,  which  is
notified under Section 16 of the Gujarat Industrial Development  Act,  would
become  a  notified  area  under  the  new  Section  264-A  of  the  Gujarat
Municipalities Act and would mean an  industrial  township  area  under  the
proviso to clause(1) of Article 243-Q of the Constitution of India.

11. On 7-9-1993, the Government  of  Gujarat  issued  a  notification  under
Section 16  of  the  Gujarat  Industrial  Development  Act  declaring  Kalol
Industrial Area as a notified  area  under  Section  264-A  of  the  Gujarat
Municipalities Act. By another notification of the same date  7-9-1993,  the
Government of Gujarat excluded the notified area from  Saij  Gram  Panchayat
under Section 9(2) of the Gujarat Panchayats Act, 1961.”

Thus, for treating  industrial  area  as  industrial  township  notification
under proviso to  Article  243-Q(1)  was  contemplated  which  is  also  the
statutory scheme under the 1976 Act.

17.   In view of the aforegoing discussion, we are of the view that  it  was
rightly held by the High Court that exemption  under  Article  12-A  of  the
1976 Act was not available in the facts of the above  case.  The  appellants
were not entitled for the reliefs claimed  in  the  writ  petition.  In  the
result, the appeal is dismissed.



                                                          ……………………………………………J
                                    [Ranjan Gogoi]



                                                          ……………………………………………J
                                             [Ashok Bhushan]
New Delhi
February 03, 2017.

whether the Annual Confidential Report (ACR) of an officer forms a part of his ‘service record’ and whether it could be ignored for the purposes of his promotion merely on the ground that it was written after some delay. In our opinion, the ACR of an officer forms a part of his service record and he cannot be prejudiced merely because his superior officers delayed writing it. The judgment and order to the contrary passed by the Madras High Court on 27th October, 2006 in W.P. Nos. 15791-15795 of 2006 does not lay down the correct law.[1]= whether on a consideration of the entire service record Sivanandi was entitled to be promoted to the IPS with the year of allotment as 1991. There is nothing to suggest that the Review Select Committee with the UPSC did not consider the case of Sivanandi for promotion on merit or that the view of the Review Select Committee was perverse in any manner. That being so we do not think it proper to interfere with the decision arrived at by the Review Select Committee with the UPSC on the basis of the service record of Sivanandi more so when it was the submission of the UPSC that what tilted the scales in his favour was his ACR for the period 1992-93 which was earlier missing and which was not taken into consideration on an earlier occasion. 22. Under these circumstances we uphold the decision taken by the Review Select Committee and allow these appeals by setting aside the order of the High Court. Sivanandi will be entitled to all consequential benefits.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS. 4822-4826 OF 2007

P. Sivanandi                                       ….Appellant

versus

Rajeev Kumar & Ors.                                      …Respondents

        WITH

                                            CIVIL APPEAL NO. 4827 OF 2007

P. Sivanandi                                         ….Appellant

                               versus

The State of Tamil Nadu & Ors.                       …Respondents

                               J U D G M E N T

Madan B. Lokur, J.

1.    These appeals raise  a  narrow  question  for  consideration,  namely,
whether the Annual Confidential Report (ACR) of an officer forms a  part  of
his ‘service record’ and whether it could be ignored  for  the  purposes  of
his promotion merely on the ground that it was written after some delay.  In
our opinion, the ACR of an officer forms a part of his  service  record  and
he cannot  be  prejudiced  merely  because  his  superior  officers  delayed
writing it. The judgment and order to the contrary passed  by   the   Madras
High  Court  on  27th October,  2006  in   W.P.  Nos.  15791-15795  of  2006
does not lay down the correct law.[1]
2.    As mentioned above, the issue involved in this case is  rather  narrow
and it is not necessary to detail all the facts of the  case.    Suffice  it
to say that the appellant Sivanandi was directly recruited on or  about  6th
May, 1985 as a Deputy Superintendent of Police with the Tamil Nadu Police.

3.    A  Select  Committee  constituted  under  the  Indian  Police  Service
(Appointment by Promotion) Regulations, 1955 considered  Sivanandi,  amongst
others, for promotion in 1994-95 to the Indian Police  Service.  The  Annual
Confidential Reports (ACRs) required to  be  considered  for  his  promotion
related to the period from 01.04.1989 to 31.03.1994.

4.    The Select Committee graded Sivanandi as ‘Good’ when  it  met  on  7th
March, 1995.  This grading was apparently arrived at on  the  basis  of  his
service records minus his ACR for 1992-93 which was missing  and  minus  his
ACR for a part  of  the  period  of  1993-94  that  is  from  01.04.1993  to
15.07.1993 which had not been written.  He was however,  considered  in  the
subsequent year 1995-96 and promoted to the IPS with the year  of  allotment
being 1993.
5.    On a challenge having been raised  to  the  selection  to  the  Indian
Police Service by some  aggrieved  officers,  an  original  application  was
filed before the  Central  Administrative  Tribunal  (Tribunal),  which  set
aside the  selection  for  1994-95.  The  Tribunal  then  directed  a  fresh
selection process. The opinion expressed by the  Tribunal  was  accepted  by
this Court by an order dated 20th February, 2002 in Civil Appeal Nos.  1299-
1305 of 1999 etc. (Christopher Nelson v. U.P.S.C. & Ors.).
6.    In view of the above facts,  a  Review  Select  Committee  constituted
under the said Regulations met  on  24th  March,  1999  and  considered  the
eligible officers including Sivanandi for promotion to the  IPS  as  on  the
year 1994-95.  By this time, the missing ACR of Sivanandi for the year 1992-
93 had been located.  Additionally, the ACR for the above period  01.04.1993
to 15.07.1993 which could not be placed before the Select Committee  in  its
meeting held on 7th March, 1995 was also available.  In fact, it  transpires
that the ACR for that period of about three and a half  months  was  written
by the Reporting Officer on 14.11.1994; it was  reviewed  by  the  Reviewing
Officer on 19.01.1996;  it  was  accepted  by  the  Accepting  Authority  on
27.01.1996.   These dates explain why the ACR for the period  01.04.1993  to
15.07.1993 could not be placed before the Select Committee when  it  met  on
7th March, 1995.
7.    Be that as it may, in view of the  consideration  of  Sivanadi’s  ACRs
including the ACR  for  1992-93  and  for  the  period  from  01.04.1993  to
15.07.1993 he was graded ‘Very Good’ and promoted to the IPS with  the  year
of allotment being 1991.
8.    Feeling aggrieved by Sivanandi’s selection,  the  private  respondents
before us approached the Tribunal through  a  batch  of  applications  being
O.A. No. 595-598 of 2005 and O.A. No. 780 of 2005.
9.    By a common order  dated  5th  May,  2006  the  Tribunal  allowed  the
original applications filed by the private respondents on the  finding  that
the ACR for the period 01.04.1993 to 15.07.1993 was invalid  and  could  not
have been considered by the Review Select Committee  since  it  was  written
beyond  the  period  prescribed  by  the  State  Government  and   therefore
Sivanandi’s selection was vitiated.  Significantly,  the  Tribunal  held  in
Sivanandi’s favour that the earlier missing ACR for 1992-93  which  was  now
made available was rightly considered by the Review Select Committee.

10.   Feeling aggrieved by the limited adverse finding against  him  by  the
Tribunal, Sivanandi preferred W.P. Nos. 15791-15795 of 2006  in  the  Madras
High Court challenging the  common  order  of  the  Tribunal  vitiating  his
selection by excluding from consideration the ACR for the period  01.04.1993
to 15.07.1993.
11.   One of the submissions made by the  Union  Public  Service  Commission
(for short ‘UPSC’) to justify the selection by the Review Select  Commission
before the High Court  was  that  the  ACR  for  the  period  01.04.1993  to
15.07.1993  could  validly  have  been  considered  by  the  Review   Select
Committee.  Alternatively, it was submitted that even if  it  were  excluded
from consideration, it would make no difference to the  overall  grading  of
Sivanandi and that it was the earlier missing ACR of 1992-93  that  resulted
in Sivanandi being graded ‘Very Good’ as  against  the  earlier  grading  of
‘Good’.  As such, the promotion of Sivanandi to the IPS was fully  justified
in law and also on merit, even  after  excluding  the  ACR  for  the  period
01.04.1993 to 15.07.1993.

12.   Unfortunately, the High Court did not  accept  Sivanandi’s  contention
or that of the UPSC and upheld the view expressed by the  Tribunal.   It  is
under these circumstances that Sivanandi is now before us.

13.   It is been brought to our notice  by  learned  counsel  for  Sivanandi
that the issue raised in these appeals is no longer  res integra in view  of
the decision of this Court in G. Mohanasundaram v. R. Nanthagopal & Ors.[2]

14.    In  the  aforesaid   decision,   the   provisions   of   the   Indian
Administrative Service (Appointment by  Promotion)  Regulations,  1955  were
under consideration.  The relevant provisions are in pari materia  with  the
provisions  of  the  Indian  Police  Service  (Appointment   by   Promotion)
Regulations, 1955.

15.   It was held by this Court that in terms of the  IAS  Regulations,  the
UPSC is obliged to consider  the  service  record  of  a  candidate  who  is
eligible for promotion and it is  on  the  basis  of  the  overall  relative
assessment of the service record that an eligible  officer  may  be  graded.
Consequently, it is quite clear  that  the  entire  service  record  of  the
eligible candidates is required to be  sent  to  the  Select  Committee  for
consideration.  For this reason, the ACRs of Sivanandi for 1992-93  and  for
the period 01.04.1993 to 15.07.1993 were required to be  considered  by  the
Review  Select  Committee.  Regulation  5  of  the  Indian  Police   Service
(Appointment by Promotion) Regulations, 1955 reads as follows:-

“5. Preparation of list of suitable officers  –  (1)  Each  Committee  shall
ordinarily meet every year and prepare a list of such members of  the  State
Police Service, as held by  them  to  the  suitable  for  promotion  to  the
Service.  The number of members of the State Police Service to  be  included
in the list shall be determined by the Central  Government  in  consultation
with the State Government concerned, and shall  not  exceed  the  number  of
substantive vacancies as on the first day of January of the  year  in  which
the meeting is held, in the posts available for them under  Rule  9  of  the
Recruitment Rules.  The date and venue of the meeting of  the  Committee  to
make the Selection shall be determined by the Commission:

      Provided that ………..

(2)…………..

(2-A)……….

(3)…………..

(3-A)………

(4)  The  Selection  Committee  shall  classify  the  eligible  officers  as
‘outstanding’  ‘very good’  ‘Good’ or ‘Unfit’ as the  case  may  be,  on  an
overall relative assessment of their service records.

(5)……….

(6)……….”



16.    In  the  above-cited  decision,  one  of  the  submissions  made   by
Mohanasundaram in this Court was that the State Government had declared  his
ACR invalid merely because it had been written beyond  the  period  of  nine
months.  It was submitted that the ACR could not  be  held  invalid  in  the
absence of any limitation prescribed under any rule or guidelines.

17.   The State of Tamil Nadu sought to rely upon  a  Government  Order  (or
GO) dated 4th April, 2007 to deny to the candidate the benefit  of  the  ACR
written beyond the period of nine months.  Although the GO dated 4th  April,
2007 was issued after the decision in the impugned judgment and  order,  the
principle laid down by this Court on the interpretation of that GO would  be
equally applicable and one of the  principles  so  laid  down  is  that  the
prescription of a period for writing an ACR is not mandatory but  directory.
 That being the position, the ACR of Sivanandi for the period 01.04.1993  to
15.07.1993  could  validly  have  been  considered  by  the  Review   Select
Committee even if it was written after some delay and there was no error  in
its consideration.

18.   This is what this Court had to say:

“In the guidelines issued by the  State  Government,  there  is  nothing  to
declare any annual confidential  report  invalid.  The  period  of  90  days
prescribed therein is not mandatory but directory. The  90  days  period  is
also to be counted from the date of demitting  office  by  the  officer  who
writes the ACR.

In view of the discussion above, we hold that in terms  of  Regulation  5(4)
of  the   Indian   Administrative   Service   (Appointment   by   Promotion)
Regulations, 1955 it was incumbent upon  the  State  Government  to  forward
complete service records of all the eligible candidates including the  first
respondent to UPSC for considering them for  promotion  to  the  IAS  cadre.
Withholding of ACRs of the year 2003-2009  of  the  first  respondent  on  a
wrong presumption that they were invalid, is illegal and fatal in  the  case
of the first respondent towards  his  appointment  to  the  post  of  Indian
Administrative Service. The aforesaid fact though  came  to  the  notice  of
UPSC which sought clarification from  the  Government  of  Tamil  Nadu,  the
State Government misled UPSC which resulted in wrong assessment  of  service
records of the first respondent in violation of Regulation  5(4)  read  with
Regulation  6  of  the  Indian  Administrative   Service   (Appointment   by
Promotion) Regulations, 1955.”


19.   That apart, the fact  that  the  ACR  of  Sivanandi  was  written  and
reviewed by his superior authorities after a  considerable  delay  obviously
cannot put him to any disadvantage.  The writing and review of his  ACR  was
beyond his control and we do not see any rational basis on  which  Sivanandi
could be disadvantaged merely because his superior officers were lax in  the
discharge of their responsibilities.
20.   Under these circumstances, we are of the  view  that  the  High  Court
while upholding  the  view  expressed  by  the  Tribunal  was  in  error  in
concluding that the Review Select Committee could not consider  the  ACR  of
Sivanandi for the period 01.04.1993 to 15.07.1993 and  to  this  extent  the
decision of the High Court is set aside.

21.   The question that now remains is whether on  a  consideration  of  the
entire service record Sivanandi was entitled to be promoted to the IPS  with
the year of allotment as 1991. There is nothing to suggest that  the  Review
Select Committee with the UPSC did not consider the case  of  Sivanandi  for
promotion on merit or that the view  of  the  Review  Select  Committee  was
perverse in any manner.  That  being  so  we  do  not  think  it  proper  to
interfere with the decision arrived at by the Review Select  Committee  with
the UPSC on the basis of the service record of Sivanandi  more  so  when  it
was the submission of the UPSC that what tilted the  scales  in  his  favour
was his ACR for the period 1992-93 which was earlier missing and  which  was
not taken into consideration on an earlier occasion.
22.   Under these circumstances we uphold the decision taken by  the  Review
Select Committee and allow these appeals by setting aside the order  of  the
High Court.  Sivanandi will be entitled to all consequential benefits.

                                                                 ……………………….J
                                           ( Madan B. Lokur )



New Delhi;                                           ………………………J
February 2, 2017                                     ( Prafulla C. Pant )

-----------------------
[1]   [2] P. Sivanandi v. Rajiv Kumar, MANU/TN/9878/2006
[3]   [4] (2014) 13 SCC 172

Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.” 30. Applying the above tests, we are of the considered opinion that High Court erred in quashing the charges framed by the order dated 05.05.2009. In result, both the appeals are allowed. The order of the High Court is set aside and the order dated 05.05.2009 is restored.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL No. 216 of  2017
                (arising out of  SLP(Crl.) No. 3998 of 2011)

STATE OF RAJASTHAN                       ... APPELLANT
                                   VERSUS
FATEHKARAN MEHDU                        ... RESPONDENT
With
Crl. Appeal No. 217  of 2017 @ SLP(Crl.)No. 3996 of 2011

                               J U D G M E N T

ASHOK BHUSHAN, J.
      Leave granted.
2.    These two appeals have been filed against the  common  judgment  dated
16.11.2010 of  the  High  Court  of  Judicature  for  Rajasthan  at  Jodhpur
allowing S.B. Criminal  Revision  Petition  No.  592/2009  Fatehkaran  Mehdu
versus State of Rajasthan and S.B. Criminal Revision Petition  No.  598/2009
Kishan Singh Rawat versus State of  Rajasthan.   The  High  Court  vide  its
order,  allowing  the  Criminal  Revisions,   set  aside  the  order   dated
05.05.2009 passed by the  Special  Judge  Anti  Corruption  Cases,  Udaipur,
framing charges against both the respondents under Section 13(1)(d) &  13(2)
of the Prevention of Corruption Act, 1988 read with Section 120B of IPC.

3.    The brief facts of the case, as  emerged  from  materials  on  record,
need to be noted for deciding the issueS raised in these appeals.  Both  the
appeals having arisen out of  First  Information  Report  No.  342/2001  and
order dated 05.05.2009 framing charges, the facts being common, it shall  be
sufficient to refer the  facts  from  Criminal  Appeal  No.......of  2017  @
SLP(Cr.) No. 3998 of 2011, State of Rajasthan versus Fatehkaran Mehdu.

4.    The Respondent, Fatehkaran Mehdu was working  as  Mining  Engineer  at
Tehsil Bijolia, District Bhilwara, State of Rajasthan in the  year  1997-98.
One Smt. Sushma Devi had submitted an application for the  grant  of  quarry
licence for a mineral (Sand  Stone)  as  per  the  Rajasthan  Minor  Mineral
Concession  Rules,  1986  (hereinafter  referred  to  as  Rule  1986).   The
application was  made  for  grant  of  quarry  licence  for  Khatedari  land
situated at Nayanagar in different plots, including Plot No.  1181/124.  She
deposited a banker's cheque  of  Rs.  1,75,000/-  dated  23.4.1998  and  the
quarry licence for 4.95 hectare (30 bigha and 12  biswas)  was  prepared  in
the name of Smt.  Sushma  Devi  Dhakad  and  Shri  Manoj  Kumar  Sandhya  on
06.05.1998. On  noticing  that  the  quarry  licence  issued  on  06.05.1998
contained various cuttings, she contacted  Fatehkaran Mehdu and  handed  him
the licence for issue of fresh licence.  Shri Mehdu after taking all  papers
from Smt. Sushma Devi did not issue  her  a  fresh  licence,  whereas,  Smt.
Sushma Devi had started mining operations. On  18.07.1998  one  Shri  K.  K.
Boda, inspected the area and stopped the mining  activities  informing  Smt.
Sushma Devi that no quarry licence was issued in her favour. On  11.08.1998,
Mining Engineer Fatehkaran Mehdu directed  Smt.  Sushma  Devi  to  stop  the
mining activities; Fatehkaran Mehdu was transferred in August  1998  out  of
Tehsil Bigolia.

5.    Aggrieved by non-issuance of quarry licence Sushma Devi filed  a  Writ
Petition No. 166 of 1999 before  the  High  Court  of  Rajasthan  which  was
dismissed by order dated 08.03.1999 due to availability of alternate  remedy
of filing an appeal under the Rules 1986.  Smt. Sushma Devi filed an  appeal
before the Appellate Authority and  Appellate  Authority  vide  order  dated
29.04.1999 allowed the appeal  and  restored  the  quarry  licence  of  Smt.
Sushma Devi.

6.    On the other hand, Sri Kishan Singh Rawat,  the  respondent  was  also
granted quarry licence  on  gap-land  in  Block  No.  263A  and  264A  which
contained a condition that the said approval shall not be effective  outside
Plot No. 1345/1185/124. Plot No. 1185/124  was  situated  towards  South  of
Plot No. 1181/124, which was included in the quarry licence of  Smt.  Sushma
Devi.

7.    Kishan Singh Rawat alongwith certain other persons had  filed  a  suit
against the consenting party of Khatedari Land No.  1238/125  on  23.06.1998
for stopping Sushma Devi from carrying on mining operations.   Another  suit
No. 1181/24 was filed on 13.7.1998 by Kishan Singh against the Khatedars  of
Plot No. 1181/124 restraining them from interfering in mining  operation  on
Plot No. 1345/1185/124 area 3 bigha.
8.    After holding a Preliminary Enquiry No. 7 of 2000  against  Fatehkaran
Mehdu, Deputy Superintendent of Police, Prevention of Corruption  Bureau  of
Udaipur, lodged a First Information Report against the Fatehkaran Mehdu  and
Kishan Singh Rawat  under  Section  13(1)(d)  and  13(2)  of  Prevention  of
Corruption Act, 1988 and Section 120B of IPC.

9.    After conducting the investigation, a chargesheet No.  208/2005  dated
24.10.2005 was submitted. The Special Judge, Prevention of  Corruption  Act,
Udaipur  vide  order  dated  05.05.2009  framed  charges  against  both  the
Respondents under Section 13(1) (d) read with Section  13(2)  of  Prevention
of Corruption Act, 1988 and 120B IPC. Aggrieved by order  dated  05.05.2009,
Fatehkaran Mehdu filed S.B. Criminal Revision Petition No. 592 of  2009  and
Kishan Singh Rawat filed S.B. Criminal Revision Petition No.  598  of  2009.
The High Court of Rajasthan vide its judgment  and  order  dated  16.11.2010
set aside the order dated 05.05.2009 allowing  the  Revision  against  which
these two appeals have been filed by the State of Rajasthan.

10.   We have  heard  learned  counsel  for  the  parties  and  perused  the
records.  Learned  counsel  for  the  appellant  submits  that  there   were
sufficient materials on record against  the  respondent,  relying  on  which
learned Special Judge has framed the charges and the  High  Court  committed
an error by interfering with the charges framed, in exercise  of  revisional
jurisdiction. It is  submitted  that  there  was  no  ground  made  out  for
exercise of revisional jurisdiction under Section 397 Cr.P.C.  for  quashing
the charges framed. It was proved  on  the  materials  on  record  that  the
Respondent Mehdu had  facilitated  Shri  Kishan  Singh  Rawat  to  carry  on
illegal mining by which, he obtained illegal benefits to  the  detriment  of
State of Rajasthan as well as Smt. Sushma Devi.  The quarry licence  granted
to Sushma Devi was cancelled by Mehdu to facilitate Kishan  Singh  Rawat  to
carry on illegal mining on the  plot,  which  was  included  in  the  quarry
licence of Sushma Devi.  Shri Mehdu being a public servant has committed  an
offence under Section 13(1)(d) read with Section 13(2).

11.   Learned  counsel  for  the  Respondent,  refuting  the  submission  of
appellant contends that the High Court on valid grounds has  set  aside  the
order framing the charge, since there was no allegation before  the  Special
Judge on which, it can be said that any offence under Section 13(1)(d)  read
with 13(2) and 120B was made out. The allegation against Shri Mehdu that  he
has granted quarry licence of 80,000 Sq. ft.  to  Kishan  Singh  Rawat,  was
factually incorrect since Kishan Singh Rawat was sanctioned  quarry  licence
of only 25,000 Sq. ft.  It is submitted  that  cancellation  of  licence  of
Smt. Sushma Devi by Shri Mehdu cannot  amount  to  any  offence  within  the
meaning of aforesaid sections and the order of Appellate Authority,  setting
aside the cancellation order does  not  lead  to  any  presumption  that  an
offence was committed by Shri Mehdu.

12.   Before we  proceed  to  examine  the  respective  contentions,  it  is
necessary  to  look  into  the  chargesheet  to  find  out  the  nature   of
allegations  made  against  the  respondents.    The  chargesheet  has  been
brought on record as Annexure A-9. It  is  relevant  to  note  some  of  the
allegations, as recorded in the  chargesheet  against  the  respondent.  The
chargesheet notices the following:

"whereas it is also  pertinent  to  mention  here  that  area  of  plot  No.
1345/1185/124 is three bigha 52272 Sq. ft. whereas,  Shri  Fatehkaran  Mehdu
Mining Engineer, Bijolia has granted sanction of 80,000 Sq. ft. as gap  fat.
Thus, Shri Fatehkaran Mehdu Mining Engineer in collusion  with  Shri  Kishan
Singh Rawat granted sanction for 80,000 Sq. ft land  as  against  52272  Sq.
ft. available land, by which obviously proceeding for giving  land  to  Shri
Kishan Singh Rawat out of plot No. 1181/124 of  Smt.  Sushma  Devi  situated
neighbouring has been done by collusion.”


13.   Further, after noticing the  facts,  pertaining  to  grant  of  quarry
licence to Kishan Singh Rawat and Smt. Sushma Devi following was stated:
“By investigation it was also found that illegal mining  was  done  on  plot
No. 1185/124 of Shri Kishan Singh Rawat for years.  In  the  year  1997  the
Mining Enginner in collusion under gap  fat  policy  with  view  to  provide
undue profit by back door got surrendered 3 bigha land out  of  5  bigha  in
favour of State Government and recorded without name so that gap  fat  could
be approved under above policy. Under rules lease can  be  granted  only  on
land of without name. To land so  surrendered  plot  No.  1345/1185/124  was
given rest of two bigha land of khatedar property  No.  1185/124  was  given
which presently is recorded as khatedari land in name  Dhiru  son  of  Limbu
Bheel R/o Suradiya Tehsil Beawar in khata  which  is  ancestral  village  of
Kishan Singh Rawat. Plot No. 1185/124 combined rakba 2 bigha  land  is  also
recorded as khatedari therefore, gap fat  permission  can  not  be  accorded
under gap fat policy  but  Mining  Engineer  in  files  of  office  accorded
approval of plot No. 1345/1185/124 rakba 3 bigha, entry in which regard  was
made with special stipulation on quarry licence but in  technical  map  told
about according approval on plot No. 1185/124 combined so  that  if  anytime
measurement is carried out then same could be found according  to  technical
map and according to same Shri Kishan Singh Rawat could get illegal  profit.
 On spot Shri Kishan Singh Rawat in present time is also doing  mining  work
on plot No. 1185/124 com. Rakba 2  bigha  land  and  whenever  question  for
measurement  arises  then  he  shows  being  approval  on   the   basis   of
department's technical map whereas, in quarry lincence and files  permission
is accorded only to plot No. 1345/1185/124, total area of which comes to  be
52472 Sq.ft whereas, according to  technical  map  area  80,000  Sq.  ft  is
shown. Under khatedari policy Shri Fatehkaran Mehdu only with view to  cause
loss to tenure holders of plot No. 1181/124 situated in south  of  plot  No.
1185/124, called back issued quarry licence of Smt. Sushma  Dhakad  in  name
of correcting same by violating all  rules,  cancelled  quarry  licence  and
information in which regard was not given to licence holders.”


14.   There was a clear allegation in the chargesheet  that  quarry  licence
to Kishan Singh Rawat was given by Shri Mehdu in furtherance of  object  and
purpose of illegally benefitting Kishan Singh Rawat. It was  further  stated
that although, approval for quarry licence on Plot No. 1345/1185/124 area  3
bigha was granted, total area  of  which  comes  to  only  52,272  Sq.  ft.,
whereas in the technical map, area was  shown  80,000  Sq.  ft.  dishonestly
benefiting Kishan Singh Rawat.

15.   Considering  the  chargesheet  and  other  materials  on  record,  the
charges have been framed.  In Para 1  of  the  order,  the  learned  Special
Judge has noted the following facts:
"1.   It is worth-mentioning that total area of land  No.  1345/1185/124  is
total three bigha i.e. 52272 Sq. ft. while Fatehkaran Mehdu issued  sanction
of 80,000 Sq. ft. in the form of gap fat area and thus,  accused  Fatehkaran
Mehdu connived with Kishan Singh Rawat, he connived in the  proceedings  for
getting alotted more  land  to  Kishan  Singh  Rawat  out  of  the  land  of
neighbour Sushma Devi, on which on establishing the prima facie case  making
out,  the  then  Additional  Superintendent  of  Police  of  Prevention   of
Corruption  Bureau,  Udaipur,  sent  an  First  Information  Report  without
numbering to the Headquarter, on which case  First  Information  Report  No.
342/01 was registered on 18.09.2001 and was received for investigation.”


16.   Further in para 2, the order states:

“2.   From the investigation it  was  established  that  Smt.  Sushma  Devi,
Manoj Kumar Sandhya and Jitmal Balai submitted application on 01.05.1998  in
prescribed form. Landowners of concerning  khasra  numbers  expressed  their
consent in favour  of  applicants,  thereafter,  on  06.05.1998  Shri  Mehdu
granted approval for issuing quarry licence and licence  were  issued.  Smt.
Sushma Devi checked quarry licence on 08.05.1998, then  came  to  know  that
serious nature of lacunae were found. At the  same  time  Smt.  Sushma  Devi
contacted Fatehkaran Mehdu, Mineral Engineer about the  abovesaid,  then  he
issued directions for making correction the quarry licence and  handed  over
letters etc. to the Office Assistant Sohanlal.  Stating excessive  cuttings,
Shri Mehdu instead of taking all  the  papers  from  Smt.  Sushma  Devi  for
issuing new quarry licence, with  intentions  to  get  other  person  Kishan
Singh unlawfully  benefits,  connived  with  him  and  malafide  and  issued
licence.”


17.   In para 2, it has further been noted:

“2.   Under the quarry licence passed by Shri Fatehkaran Mehdu, Shri  Kishan
Singh undertook unauthorized mining work for years on  five  bigha  land  in
place of three bigha land due to which State  Government  suffered  loss  of
annual rent etc. and Kishan Singh earned unlawful profits.   On  account  of
conspiracy  hatched  with  him  and  connivance  forgetting   Kishan   Singh
benefitted, it established that  Shri  Fatehkaran  Mehdu  allotted  land  to
Kishan Singh Rawat contrary to rules or in the form of  gap  &  fat  due  to
which the present charge sheet under  section  13(1)(d)  read  with  section
13(2) Prevention of Corruption Act, 1988 and section 120 Indian  Penal  Code
was filed in which Kishan Singh Rawat, beneficiary was also made accused.”


18.   The Special Judge after considering the  contention  putforth  by  the
learned counsel for the parties noted the  charge  that  against  the  total
area of 52,272 Sq. ft. available, Shri Mehdu has issued sanction for  80,000
Sq. ft. in the form of 'gap area' to Kishan Singh Rawat  to  unduly  benefit
him, and the same can  be  decided  after  recording  oral  and  documentary
evidence.  The Special Judge found, a clear  prima  facie  case  of  framing
charges. It is relevant to extract the findings from Para 6  of  the  order.
In Para 6 of the order, following has been stated:

“Prima facie charge has been framed against accused persons  that  with  the
intentions to cause loss to Khatedars of land No. 1181/124 situated  in  the
southern side of land No. 1185/124, on which licence issued to  Smt.  Sushma
Dhakar, Shri Fatehkaran Mehdu called for the same in the name of  rectifying
the same, he canceled the quarry licence in violations of all the rules  and
its information was not conveyed to the licence  holders.   Shri  Mehdu  did
not try to settle the disputes on the  spot  rather  he  issued  licence  to
parties without any acceptable demaraction  and  canceled  without  adopting
process.  Dispute prevailing between land No. 1185/125  and  1181/124  could
have been settled earlier by carrying out measurement in detail through  the
Department of  revenue,  but  no  any  effort  was  made  in  this  context,
consequently, Kishan Singh Rawat has undertaken unauthorized mining work  on
five bigha area of land No. 1185/124 in place of three  bigha  land  due  to
which State Government has suffered  loss  of  annual  rent  etc..  it  also
established  in  the  investigation  that  Fatehkaran  Mehdu  had  got   the
intentions behind cancelling of quarry licence of Smt.  Sushma  Dhakar  that
Kishan Singh Rawat be benefited by allotting  land  to  Kishan  Singh  Rawat
neighbour of Smt. Dhakar in the name of gap  fat  and  Shri  Mehdu  has  got
Kishan Singh Rawat financially benefitted unlawfully by  allotting  land  in
the form of gap fat having misused his post and  powers.   It  is  universal
principle of law that court is supposed to see at the stage  of  framing  of
charge as to whether prima facie case worth triable makes out on  the  basis
of evidence and  the  facts  putforth  by  the  prosecution  or  not.  Final
disposal of the charges framed against accused on merits  does  not  require
at the said stage.”


19.   In view of what has been noted  above,  whether  the  High  Court  was
right in quashing the order framing charges by Special Judge on  05.05.2009,
is the question to be answered in these  appeals.  What  is  the  basis  for
quashing the charges by the High Court, has to be found out from  the  order
of the High Court, allowing the Criminal Revisions.

20.   The High  Court,  after  noticing  the  few  allegations  against  the
respondent observed that  there was no allegation made  by  the  prosecution
against the respondent to the effect that by any corrupt  or  illegal  means
Shri Mehdu obtained any valuable thing or pecuniary  advantage  for  himself
or for any other person. With regard to alleged allotment of 80,000 Sq.  ft.
in favour of Kishan Singh Rawat, it was held prima facie not to  be  correct
since concerned Mining Engineer had certified that there  was  no  allotment
of 80,000 Sq. ft. by Mehdu to Kishan Singh Rawat.  It is useful  to  extract
para 8 and 9 of the judgement of the High Court which is  to  the  following
effect:
"8.   Having gone through the aforesaid provision  and  judgments  cited  at
the bar and upon perusal of the order dated 5.5.2009, this  Court  does  not
find any allegation  made  by  the  applicant  or  prosecution  against  the
present petitioner that by any corrupt or  illegal  means  he  obtained  any
valuable thing or pecuniary advantage either for himself or  for  any  other
person. Even  alleged  allotment  of  80,000  Sq.  ft.  land  in  favour  of
petitioner no. 2 Kishan Singh was prima facie found to  be  incorrect  since
concerned Mining Engineer himself certified that there was no  allotment  of
80,000 sq. ft. area by the present petitioner in favour of petitioner No.  2
Kishan Singh and only allotment made was way back in 1997-98 of  25,000  sq.
ft.  Mere fact that application Smt. Sushma Devi had to file  appeal  before
the competent authority under the Mining Act  against  the  alleged  illegal
cancellation of her quarry licence and succeeded therein does not amount  to
any criminal charge against the present  petitioner  under  the  purview  of
Section 13 (1) (d) of the Prevention of Corruption  Act,  1988.   Obviously,
these proceedings are quasi judicial in nature  undertaken  in  exercise  of
powers conferred upon the Mining Engineer under the said Act and  any  error
which can be corrected by appellate or revisional authority does not  amount
to a criminal charge established against the  said  authority.   This  Court
does not find any allegation of taking bribe  or  any  other  allegation  of
that nature which would come within the ambit of words employed  in  Section
13 (1) (d) namely; “by corruption or illegal means obtains  for  himself  or
for any other person any valuable thing or pecuniary advantage.”

"9.   In the absence of any such allegation, this  court  cannot  appreciate
how  the  charge  under  Section  13(1)  (d)  and  13(2)  of  Prevention  of
Corruption Act read with Section  120B  IPC  has  been  framed  against  the
present Petitioners.”


21.   The High Court based its judgement for quashing  the  charges  on  the
aforesaid conclusion, as recorded in para 8 and  9.   Section  13(1)  (d)  &
13(2) of the Prevention of Corruption Act, 1988  under  which  charges  have
been framed, are to the following effect:
“13. Criminal misconduct by a public servant:

(1) A public servant is said to commit the offence of criminal misconduct,-

                         .....   .......     .......

            (d) if he,-

(i) by corrupt or illegal means,  obtains  for  himself  or  for  any  other
person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant,  obtains  for  himself  or
for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any  person  any
valuable thing or pecuniary advantage without any public interest; or

                          .....   .......     ......



(2) Any public servant who commits criminal misconduct shall  be  punishable
with imprisonment for a term which shall be  not  less  than  one  year  but
which may extend to seven years and shall also be liable to fine.”


22. What are the allegations against Mehdu to  frame  charge  under  Section
13(1) (d) read with 13(2) has to be  found  out  from  the  Chargesheet  and
other materials. We have already extracted the  relevant  allegations,  made
against Shri Mehdu in the chargesheet as well as the facts  noticed  by  the
learned Special Judge.  While framing  the  charge,  the  substance  of  the
allegation against Mehdu is that he has granted a quarry licnece  to  Kishan
Singh Rawat on three bigha area of plot No.  1345/1185/124,  total  area  of
which comes to 52,272 Sq. ft.  whereas,  he  was  sanctioned  80,000  Sq.ft.
Further allegation is that Mehdu permitted Kishan Singh Rawat to indulge  in
unauthorised mining over the  larger  area  than  that  of  granted  to  him
putting the Government as well as Smt. Sushma Devi to loss.  The High  Court
in its order has observed that it has been certified by the  present  Mining
Engineer that Mehdu had never sanctioned alleged 80,000 Sq.ft. in favour  of
Kishan Singh Rawat for which observation, the  High  Court  based  a  letter
dated 13.11.2009 filed as Annexure A-11 in the appeal, which was also  taken
on the  record  by  the  High  Court.  The  said  letter  was  addressed  to
Fatehkaran Mehdu in reply to his querry, as to whether, Kishan  Singh  Rawat
was granted quarry licence for 80,000 Sq. ft.  The answer given in the  said
letter dated 03.11.2009 is to the following effect:

"As per the information sought with regard to the captioned subject, as  per
the record available in the office no licence of 80,000  Sq.  ft.  has  been
granted to Shri Kishan Singh Rawat  in  Arazi  No.  1185/124  Mauza  village
Nayanagar, Tehsil Bijoliya, District – Bhilwara.  In the  circumstances,  it
is not possible to give the copy. In the year 1997-1998, the quarry  licence
holder in Plot No. 263 A and 264 A of Arazi No. 1185/124  Shri  Gopal  Singh
Rawat S/o Shri Anna Singh Rawat R/o Suradia Tehsil  Byawar,  District  Ajmer
(Rajasthan) was granted permission and quarry licence of  total  12500-12500
Sq. ft. The said quarry licence was transferred in the name of Kishan  Singh
Rawat S/o Devi Singh Rawat  resident  of  Suradia,  Tehsil  Byawar  District
Ajmer (Rajasthan), which is not effective at present.”


23.   The Respondents have brought on record the copy of the quarry  licence
granted to Kishan Singh Rawat as Annexure A-3 and A-4 which  indicates  that
two quarry licences were for 12500 Sq. ft each.  It appears  that  the  High
Court failed to advert the substance of allegation against  Shri  Mehdu,  as
we have already noticed from  the  chargesheet  that  Shri  Mehdu  although,
granted  quarry  licence  only  for  three  bigha  gap  land  in  Plot   No.
1345/1185/124, but technical map issued by Shri Mehdu  was  to  an  area  of
80,000 Sq. ft, which was a  source  for  Kishan  Singh  Rawat  to  carry  on
unauthorised mining over the larger area than that of actually  allotted  to
him.

24.   In the chargesheet following has been specifically noted :


"....On spot Shri Kishan Singh Rawat in present time is  also  doing  mining
work on plot No. 1185/124 com. Rakba 2 bigha land and whenever question  for
measurement  arises  then  he  shows  being  approval  on   the   basis   of
department's technical map whereas, in quarry lincence and files  permission
is accorded only to plot No. 1345/1185/124, total area of which comes to  be
52472 Sq.ft whereas, according to  technical  map  area  80,000  Sq.  ft  is
shown.”


25.   As noted  above,  learned  Special  Judge  had   observed  that  final
adjudication of charge cannot be made unless oral and  documentary  evidence
are received. The High Court has not adverted to  the  technical  map  which
mentions 80,000 Sq. Ft.  and  without  adverting  to  that  allegation,  has
erroneously observed that there is no allegation which may come  within  the
meaning of 13 (1) (d) read with 13(2)  of  the  Act.  Both  chargesheet  and
order of the learned Special Judge have specifically noted the  allegations,
which clearly makes out an offence  under  Section  13(1)(d)  and  13(2)  of
Prevention and Corruption Act, 1988 and Section 120B I.P.C.

26.   The scope of interference and exercise of jurisdiction  under  Section
397 of Cr.P.C. has been time and again explained  by  this  Court.  Further,
the scope of interference under Section 397 Cr.P.C. at a stage, when  charge
had been framed, is also well settled. At the stage of framing of a  charge,
the court is concerned not with the proof of the allegation  rather  it  has
to focus on the material  and  form  an  opinion  whether  there  is  strong
suspicion that the accused has committed an offence, which if put to  trial,
could prove his guilt.  The framing of charge  is  not  a  stage,  at  which
stage final test of guilt is to be applied. Thus, to hold that at the  stage
of framing the charge, the court should form an opinion that the accused  is
certainly guilty of committing an offence, is to  hold  something  which  is
neither permissible nor is in consonance with scheme  of  Code  of  Criminal
Procedure.

27.   Now, reverting to  the  limit  of  the  scope  of  jurisdiction  under
Section 397 Cr. P.C., which vests the court with the power to call  for  and
examine the records of an inferior court  for  the  purposes  of  satisfying
itself as to the legality and regularity of any proceedings  or  order  made
in a case.  The object of this provision is to set right a patent defect  or
an error of jurisdiction or law or the perversity which  has  crept  in  the
proceeding.

28.   It is useful to refer to judgment of this Court  in  Amit  Kapoor  and
Ramesh Chander and Another, (2012) 9 SCC 460, where  scope  of  Section  397
Cr. P.C. have been succinctly considered and explained. Para 12 and  13  are
as follows:
"12.  Section 397 of the Code vests the court with the  power  to  call  for
and examine the records of an inferior court for the purposes of  satisfying
itself as to the legality and regularity of any proceedings  or  order  made
in a case. The object of this provision is to set right a patent  defect  or
an error of jurisdiction or law. There has to be a  well-founded  error  and
it may not be appropriate for the court  to  scrutinize  the  orders,  which
upon the face of it bears a token of careful consideration and appear to  be
in accordance with law. If one looks into  the  various  judgments  of  this
Court, it emerges that the revisional jurisdiction can be invoked where  the
decisions under challenge are grossly  erroneous,  there  is  no  compliance
with the provisions of law, the finding recorded is based  on  no  evidence,
material  evidence  is  ignored  or   judicial   discretion   is   exercised
arbitrarily or perversely. These are not exhaustive classes, but are  merely
indicative. Each case would have to be determined on its own merits.”


“13. Another well-accepted norm is that the revisional jurisdiction  of  the
higher court is a very limited one and cannot  be  exercised  in  a  routine
manner. One of the inbuilt restrictions is that it should not be against  an
interim or interlocutory order. The Court has  to  keep  in  mind  that  the
exercise of revisional jurisdiction itself should not lead  to  injustice ex
facie. Where the Court is dealing  with  the  question  as  to  whether  the
charge has been framed properly and in accordance with law in a given  case,
it may be reluctant to interfere in exercise of its revisional  jurisdiction
unless the case substantially falls within the categories aforestated.  Even
framing of charge is a much advanced stage  in  the  proceedings  under  the
CrPC.”



29.   The Court in para  27  has  recorded  its  conclusion  and  laid  down
principles to be considered for exercise of jurisdiction under  Section  397
particularly in context of quashing of charge framed under Section  228  Cr.
P. C. Para 27, 27(1), (2), (3), (9), (13) are extracted as follows:
"27.    Having  discussed  the  scope  of  jurisdiction  under   these   two
provisions, i.e., Section 397 and Section 482 of the Code and the fine  line
of jurisdictional distinction, now it will be appropriate for us  to  enlist
the principles with reference to  which  the  courts  should  exercise  such
jurisdiction.  However,  it  is  not  only  difficult  but   is   inherently
impossible to state  with  precision  such  principles.  At  best  and  upon
objective analysis of various judgments of this Court, we are able  to  cull
out some  of  the  principles  to  be  considered  for  proper  exercise  of
jurisdiction, particularly, with regard to  quashing  of  charge  either  in
exercise of jurisdiction under Section 397 or Section 482  of  the  Code  or
together, as the case may be:


27.1) Though there are no limits of the powers of the  Court  under  Section
482 of the Code but the more the power, the more due care and caution is  to
be exercised in invoking  these  powers.  The  power  of  quashing  criminal
proceedings, particularly, the charge framed in terms of Section 228 of  the
Code should be exercised very sparingly and  with  circumspection  and  that
too in the rarest of rare cases.

27.2) The Court should apply the  test  as  to  whether  the  uncontroverted
allegations as made from the record of the case and the documents  submitted
therewith prima facie establish the offence or not. If the  allegations  are
so patently absurd and inherently improbable  that  no  prudent  person  can
ever reach such a conclusion and where the basic ingredients of  a  criminal
offence are not satisfied then the Court may interfere.



27.3) The High Court should not unduly interfere. No meticulous  examination
of the evidence is needed for considering whether  the  case  would  end  in
conviction or not at the stage of framing of charge or quashing of charge.



27.9) Another very significant caution that the courts have  to  observe  is
that it cannot examine the  facts,  evidence  and  materials  on  record  to
determine whether there is sufficient material on the  basis  of  which  the
case would end in a conviction; the Court is concerned  primarily  with  the
allegations taken as a whole whether they will constitute  an  offence  and,
if so, is it an abuse of the process of court leading to injustice.


27.13) Quashing of a charge is  an  exception  to  the  rule  of  continuous
prosecution. Where the offence is even broadly satisfied, the  Court  should
be more inclined to permit  continuation  of  prosecution  rather  than  its
quashing at that initial stage. The Court is not  expected  to  marshal  the
records  with  a  view  to  decide  admissibility  and  reliability  of  the
documents or records but is an opinion formed prima facie.”


30.   Applying the above tests, we are of the considered opinion  that  High
Court erred in quashing the charges framed by the  order  dated  05.05.2009.
In result, both the appeals are allowed.  The order of  the  High  Court  is
set aside and the order dated 05.05.2009 is restored.  The  learned  Special
Judge may proceed with the trial in accordance with the law expeditiously.


                                  ........................J
                                       (Ranjan Gogoi)


                                  ........................J
                 (Ashok Bhushan)

New Delhi
February 03, 2017