Section 97 of the Act mandates that the State Government shall ensure a minimum tenure of two years for the State Police Chief. However, the State Police Chief could be transferred out before completion of the tenure if the State Government is prima facie satisfied that it is necessary to do so, on certain grounds specified in sub-section (2) of Section 97 of the Act. We are concerned with clause (e) thereof relating to causing “serious dissatisfaction in the general public about efficiency of police in his jurisdiction.” = Dr. T.P. Senkumar - is said to be an outstanding officer in the Indian Police Service and in view of his meritorious record and service, he was appointed as the Director General of Police & Head of Police Force (the State Police Chief) in terms of Section 18 of The Kerala Police Act, 2011 (for short “the Act”) on 22nd May, 2015. - In any event, if we are asked to choose between leaning in favour of the State or the citizen, we would certainly lean in favour of the citizen and give him or her benefit of the doubt = the events post the Puttingal Temple tragedy and the Jisha murder and not the two tragedies themselves, we have no hesitation in concluding that the appellant has been unfairly and arbitrarily dealt with. Under the circumstances, we are compelled to set aside the judgment and order of the Central Administrative Tribunal, the impugned judgment and order of the High Court as well as the order dated 1st June, 2016 and direct the State of Kerala to reinstate the appellant Dr. T.P. Senkumar as the State Police Chief. .

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 5227 OF 2017


Dr. T.P. Senkumar IPS                                  ...Appellant

                                     Vs.

Union of  India & Ors.                                     ...Respondents



                               J U D G M E N T



Madan B. Lokur, J.

1.    The appellant – Dr. T.P. Senkumar -  is  said  to  be  an  outstanding
officer in the Indian Police Service and in view of his  meritorious  record
and service, he was appointed as the Director General of Police  &  Head  of
Police Force (the State Police Chief) in terms of Section 18 of  The  Kerala
Police Act, 2011 (for short “the Act”) on 22nd May, 2015.

2.    Section 97 of the Act mandates that the State Government shall  ensure
a minimum tenure of two years for the  State  Police  Chief.   However,  the
State Police Chief could be transferred out before completion of the  tenure
if the State Government is prima facie satisfied that it is necessary to  do
so, on certain grounds specified in sub-section (2) of  Section  97  of  the
Act.  We are concerned with clause (e) thereof relating to causing  “serious
dissatisfaction in the general public about  efficiency  of  police  in  his
jurisdiction.”
3.    Ordinarily therefore, the appellant’s tenure  as  State  Police  Chief
should have continued till 21st May,  2017  and  even  thereafter  till  his
superannuation sometime in June, 2017.  However, the tenure  was  cut  short
and he was transferred out as Chairman and Managing Director of  the  Kerala
Police Housing and Construction Corporation Ltd. on State  deputation  basis
by an order dated 1st June, 2016.

4.    The appellant challenged his displacement by filing a petition in  the
Central Administrative Tribunal, which was dismissed.  He then  preferred  a
writ petition in the Kerala High Court challenging the order of the  Central
Administrative Tribunal.  The  Division  Bench  hearing  the  writ  petition
dismissed it by the impugned judgment and order dated  25th  January,  2017.
It is under these circumstances that the appellant is now before us.

5.     The  question  for  our  consideration  is  whether  the  appellant’s
displacement from the post of  State  Police  Chief  in  Kerala  before  the
expiry of his tenure of two years was justified in law. In our opinion,  the
answer is in the negative. The removal or displacement or  transfer  out  of
an officer from a sensitive tenure post requires serious  consideration  and
good reasons that can be tested so that the officer is not dealt with  as  a
pawn in a game. Unfortunately, the somewhat exacting  standards  are  absent
in the present case and the appellant was displaced from the post  of  State
Police Chief summarily and without reasonable cause.

Prakash Singh’s case
6.    Before detailing the controversy before us it is  necessary  to  refer
to the decision of this Court in Prakash Singh & Ors. v. Union of India  and
Ors.[1]  In that case, this Court dealt with the issue of police reforms  in
the context of the far-reaching changes that had taken place in the  country
after the enactment of the Indian Police Act, 1861. It  was  noted  that  no
comprehensive review had been undertaken in  this  regard  at  the  national
level and therefore, the Government of India  appointed  a  National  Police
Commission on 15th  November,  1977  which  recommended  significant  police
reforms.  It was also noted that  subsequently,  there  were  other  half  a
dozen reports on the same or similar  subject  but  no  substantive  reforms
were brought about.

7.    In the course of its judgment,  this  Court  referred  to  a  research
paper titled “Political  and  Administrative  Manipulation  of  the  Police”
published in 1979 by the Bureau of Police  Research  and  Development.   The
research paper contained a caution to the effect that excessive  control  by
the political executive and its principal advisers over the police  had  the
inherent danger of making the police a tool for subverting  the  process  of
law,  promoting  the  growth  of  authoritarianism  and  shaking  the   very
foundations of democracy. We may  add  that  one  of  the  findings  in  the
research paper is “The present predicament of Police is that they have  been
exposed to a two pronged pressure vertically  from  the  Administration  and
laterally  from  the  politicians.”[2]  With  these   two   pressures,   the
independent  functioning  of  the  police  can  and   sometimes   does   get
compromised at the hands  of  very  important  persons  and  those  claiming
proximity to very important persons.

8.    Keeping this and other material  in  mind,  including  the  fact  that
commitment, devotion and accountability of the police has to be only to  the
rule of law,  this Court issued certain directions  in  exercise  of  powers
under Article 32 read  with  Article  142  of  the  Constitution  for  doing
complete justice in any cause or matter. This Court took the view  that  the
directions  and  guidelines  ought  to  be  observed  in  the   absence   of
legislation  and  implemented  till  the   Legislatures   pass   appropriate
legislations.

9.    Resort to Article 32 read with Article  142  of  the  Constitution  in
such situations was in continuation of similar views  expressed  in  Vishaka
v. State of Rajasthan[3] wherein this Court held  in  paragraph  16  of  the
Report that in the absence of enacted law,

“…… to provide for the effective enforcement of the  basic  human  right  of
gender equality and guarantee against  sexual  harassment  and  abuse,  more
particularly against sexual  harassment  at  workplaces,  we  lay  down  the
guidelines and  norms  specified  hereinafter  for  due  observance  at  all
workplaces or other institutions, until a legislation  is  enacted  for  the
purpose. This is done in exercise of the power available  under  Article  32
of the Constitution for enforcement of the  fundamental  rights  and  it  is
further emphasised that this would be treated as the law  declared  by  this
Court under Article 141 of the Constitution.”



A similar view was taken  by  this  Court  in  Vineet  Narain  v.  Union  of
India[4] wherein this Court held in paragraph 49 of the Report as follows:

“There are ample powers conferred by Article 32 read  with  Article  142  to
make orders which have the effect of law by virtue of Article 141 and  there
is mandate to all authorities to act in aid of the orders of this  Court  as
provided in Article 144 of the Constitution. In a  catena  of  decisions  of
this Court, this power has been recognised and exercised,  if  need  be,  by
issuing  necessary  directions  to  fill  the  vacuum  till  such  time  the
legislature steps in to cover  the  gap  or  the  executive  discharges  its
role……… It is essential and indeed the  constitutional  obligation  of  this
Court under the aforesaid provisions to issue the  necessary  directions  in
this behalf. We now consider formulation of the  needed  directions  in  the
performance of this obligation. The  directions  issued  herein  for  strict
compliance are to operate till such time as they are  replaced  by  suitable
legislation in this behalf.”


10.   One of the more significant directions given by  this  Court  pertains
to the establishment of a State Security Commission.  It was  directed  that
it  should  be  ensured  that  the  State  Government  does   not   exercise
unwarranted influence or pressure on the  State  Police  and,  therefore,  a
watchdog body called the State Security  Commission  should  be  constituted
with some official members as well as some non-official members  who  should
be chosen in such a manner that they are able  to  function  independent  of
government control.   It was directed that the recommendations of the  State
Security  Commission   shall   be   binding   on   the   State   Government.
Incidentally, on our asking we were informed  by  learned  counsel  for  the
State Government that as of now, the  State  Security  Commission  does  not
have any independent member.

11.   Another significant direction given  was  that  the  State  Government
shall select the Director General of Police of the State  from  amongst  the
three senior-most empanelled  officers  keeping  in  mind  their  length  of
service, very good record and range of experience  for  heading  the  police
force.  It was directed that the Director General of Police  should  have  a
minimum  tenure  of  at  least  two  years  irrespective  of  his  date   of
superannuation.  It was  further  directed  that  the  Director  General  of
Police may be relieved of responsibilities by the  State  Government  acting
in consultation with the State  Security  Commission  on  certain  specified
grounds.  All these directions were given by this Court so  as  to  insulate
the police from external pressures and maintain the rule of law and  not  of
persons.

The State legislation
12.    A  few  years  after  the  decision  in  Prakash  Singh,  the  Kerala
Legislature enacted the Kerala Police Act, 2011.
13.   Section 18 of the Act provides for a State Police  Chief  vested  with
the  administration,  supervision,  direction  and  control  of  the  police
throughout the State, subject to the control of the State Government.    The
State Police Chief should have the ability to lead the police force  of  the
State and should be selected  taking  this  into  account  as  well  as  the
overall history of service, professional knowledge and experience.   Section
18 of the Act reads as follows:

“18. State Police Chief - (1)  The  administration,  supervision,  direction
and control of the  Police  throughout  the  State  shall,  subject  to  the
control of the Government, be vested in an officer designated as  the  State
Police Chief.

(2) The State Police Chief shall be appointed by the Government  from  among
those officers of the State Cadre of the  Indian  Police  Service  who  have
already been promoted to the rank of  Director  General  of  Police,  taking
into account the ability to lead the Police Force of the State, the  overall
history of service, professional knowledge and experience:

Provided that where in a  case  or  disciplinary  proceedings,  for  and  on
behalf of the State a charge  has  been  given  or  is  pending  against  an
officer before any Court or Tribunal or departmental  agency,  that  officer
shall not be appointed as the State Police Chief.

(3) Any person who performs any functions of the  police  in  the  State  of
Kerala  in  exercise  of  the  powers  under  this  Act  shall  be  officers
subordinate to the State Police Chief.

(4) Such number of officers of different ranks as  may  be  decided  by  the
Government from time to time shall assist the State Police Chief.

(5) No officer senior to the State Police Chief shall be  appointed  in  the
Kerala Police.”



14.   Section 24 of the Act provides  for  the  constitution  of  the  State
Security Commission  for  discharging  certain  functions  as  mentioned  in
Section 25 of the  Act.  The  State  Security  Commission  consists  of  the
Minister in-charge of Home Department who  shall  be  the  Chairperson;  the
Minister in-charge of Law; the Leader of Opposition; a retired Judge of  the
High Court nominated by the Chief Justice of the High Court of  Kerala;  the
Chief Secretary;  the Secretary to State Government in the  Home  Department
and the State Police Chief as  ex-officio  members  and  three  non-official
members of eminence nominated by the Governor of the State, one of the  non-
official  members  being  a  woman.  In  other  words,  the  State  Security
Commission is expected to be a  relatively  independent  body,  but  is  not
truly so in view of other provisions in the Act.

15.   The functions of the State Security Commission as given in Section  25
of the Act read as follows:

“25. Functions of the Commission.  –  (1)  The  Commission  shall  have  the
following functions, namely:-

to frame general policy guidelines for the functioning of the Police in  the
State;

to issue directions for the implementation of  crime  prevention  tasks  and
service oriented activities of the Police;

to evaluate, from time to time, the performance of the Police in  the  State
in general;

to prepare an annual report of the activities of the Commission  and  submit
it to the Government; and

to prepare the guidelines for the changes to be carried out,  from  time  to
time, in the State Police; and

to discharge  such  other  functions  as  may  be  assigned  to  it  by  the
Government.

(2)  The report submitted by the Commission under clause (d) of  sub-section
(1) shall, on receipt, be placed before the Legislative Assembly.

(3)   No Act or Proceedings of the Commission shall be deemed to be  invalid
merely by reason of any vacancy in the Commission at the time any  such  Act
or Proceedings was done or issued.

(4)  Notwithstanding any guidelines or directions issued by the  Commission,
the Government may lawfully issue such directions as it deems  necessary  on
any matter, if the situation so warrants, to meet any emergency.

(5)  The directions of  the  Commission  shall  be  binding  on  the  Police
Department:

Provided that the Government may, for reasons to  be  recorded  in  writing,
fully or partially, reject or modify any recommendation or direction of  the
Commission.”



16.   With regard to the minimum tenure of  police  officers  including  the
State Police Chief, Section 97 of the Act provides as follows:

“97. Minimum tenure of police officers.- (1) The Government shall  ensure  a
minimum tenure of two years for  police  officers  posted  as  State  Police
Chief, Inspectors General in charge of Ranges, Superintendents of Police  or
Commissioners in charge of Police Districts and State House Officers:

Provided  that  this  tenure  shall  not   be   applicable   in   cases   of
superannuation, promotion, reversion, suspension, leave, etc.

(2) The Government or the appointing authority  may,  without  prejudice  to
the right to initiate any legal or departmental action transfer  any  police
officer  before  completing  the  normal  tenure  of  two  years,  on  being
satisfied prime facie that it is necessary to do so on any of the  following
grounds stated in (a) to (f) namely:-

the officer is subjected to disciplinary action;

it is found prima facie on investigation that the officer is involved  in  a
corrupt practice or in a criminal offence involving proclivity for  violence
or moral turpitude;

the officer is physically or mentally incapable of discharging his duties;

a superior officer evaluating the work of an officer, reports,  in  writing,
that the officer is not carrying out his duties efficiently;

cause serious dissatisfaction in the  general  public  about  efficiency  of
police in his jurisdiction;

the officer requests, in writing, for a transfer from the place where he  is
working.”



17.   It will be seen from the above that some of the  directions  given  by
this Court were not accepted by the Kerala Legislature in enacting the  Act.
 Among  these  was  the  direction  regarding  the  binding  nature  of  the
recommendations of the State Security Commission and the direction  relating
to the Director General of Police or the State Police Chief  being  relieved
of responsibilities by the State Government acting in consultation with  the
State Security Commission. Consequently, in the selection or removal of  the
Director General of Police or the State Police  Chief,  the  State  Security
Commission has no role to play under the Act.   In  a  sense  therefore,  an
important element in the spirit of  the  judgment  of  this  Court  was  not
accepted by the Kerala Legislature, namely that of making the  State  Police
Chief accountable only to the rule of law nor  did  the  Kerala  Legislature
accept the warning of the Bureau of Police Research and Development  against
excessive control over  the  police  by  the  political  executive  and  its
principal advisers.
18.   In this background, what falls for our consideration  is  whether  the
State Police Chief can be removed from his tenure posting on a  prima  facie
opinion that he or  she  caused  “serious  dissatisfaction  in  the  general
public about efficiency of police in his  jurisdiction”  and  what  are  the
restrictions and constraints in arriving at such a prima facie conclusion.

Puttingal Temple Tragedy and the Note of 13th April, 2016
19.   The appellant was given a  tenure  appointment  as  the  State  Police
Chief on 22nd May, 2015 in accordance with Section 18 and Section 97 of  the
Act. It appears that his tenure did not involve any  controversy  until  the
night of 9th April, 2016.

20.   Very briefly, on 9th April, 2016  a  festival  called  ‘Meena  Bharani
Utsavam’ was celebrated in district Kollam. As a part of  the  celebrations,
the Temple Administration Committee sought permission to  have  a  fireworks
display in  the  form  of  a  competition  at  the  Puttingal  Devi  Temple.
Permission  to  hold  such  a  competition  was  declined  by  the  District
Administration. An application was then made by  the  Temple  Administration
Committee to hold a fireworks display (non-competitive) but  even  this  was
declined by the District Administration. However, the Temple  Administration
Committee nevertheless went ahead with a fireworks display.  Late  into  the
night (early  morning  of  10th  April)  an  extremely  unfortunate  tragedy
occurred resulting  in  the  stock  of  fireworks  catching  a  spark.  This
resulted in an explosion  and  the  death  of  more  than  100  persons  and
injuries to more than 400 persons.

21.   The facts leading up to the tragedy are summarized  in  a  Note  dated
13th April, 2016 by the Additional Chief Secretary  (Home)  with  regard  to
what is now known  as  the  Puttingal  Temple  tragedy.   The  Note  of  the
Additional Chief Secretary (Home) is comprehensive and is based  on  reports
received from:

 State Police Chief and Director General of Police (appellant)

 Commandant General Fire Police

 Director, State Intelligence

 Additional Director General of Police, Crimes

 District Collector and District Magistrate, Kollam

 Commissioner of Police, Kollam City

In other words, the Note is based  on  inputs  received  from  all  relevant
sources and is also based on contemporaneous information.

22.   The Note records  that  the  Temple  Administration  Committee  sought
permission for a display of fireworks but this  was  declined  by  an  order
dated 8th April, 2016 by the Additional District  Magistrate,  Kollam.   The
officer declined to grant any permission either for display of fireworks  or
competitive fireworks. While declining to grant permission,  the  Additional
District Magistrate, Kollam  specifically  instructed  the  Commissioner  of
Police, Kollam City to ensure that no violation of the order takes place.

23.   The Circle Inspector of Police, Paravur was present  at  the  site  of
display of fireworks and the tragic incident.   It  was  reported  that  the
officer “repeatedly asked the temple authorities  to  stop  the  display  of
fireworks” but obviously to no effect. It appears that before the  fireworks
display started, the temple authorities informed  the  Circle  Inspector  of
Police that a sanction order from the Additional District Magistrate was  on
the way but he failed to verify this from the District Magistrate.

24.   From the  report  of  the  Director,  State  Intelligence  Bureau,  it
appears that the District Police Chief (perhaps the Commissioner of  Police)
Kollam City was alerted on 31st March,  2016  for  taking  steps  concerning
issues relating to the temple festival.
25.   On 9th April, 2016 at about 12.30 p.m.  a  meeting  was  held  in  the
chambers of the Deputy Commissioner of Police, Kollam City where the  temple
authorities of  Puttingal Devi  temple  and  police  officers  participated.
The Deputy Commissioner of  Police  gave  instructions  that  the  fireworks
display  could  be  conducted  only  after  getting  a  proper  license   or
permission from the Additional District Magistrate.  The temple  authorities
apparently assured that the fireworks display would  be  conducted  only  in
accordance with law.

26.   The Note records several conclusions, some of the more important  ones
as far as we are concerned are as follows:

Despite the warning given as early as on 31st March, 2016 there was no  pro-
active planning [by  the  police]  to  avert  the  tragedy.  The  Additional
District Magistrate had passed an order on 8th April, 2016  prohibiting  the
display of fireworks and  the  Commissioner  of  Police  had  received  this
order.  The Deputy Commissioner of Police held a meeting in his  chamber  on
9th April, 2016 wherein he is said to have told the  temple  authorities  to
get an order from the Additional  District  Magistrate  for  permitting  the
fireworks display after ensuring that there would be no competition. It  was
concluded that apparently the Deputy Commissioner of  Police  was  appeasing
the temple authorities rather than trying to  implement  the  order  of  the
Additional District Magistrate.

The Circle Inspector of Police did not inform any officer senior to  him  in
the chain of command when the situation was going out of  control.   As  far
as the Commissioner  of  Police  is  concerned,  he  admitted  that  he  got
information of the tragedy only  when  it  had  struck  (and  not  when  the
fireworks display started).

The fireworks display started at about 11.30 p.m. on  9th  April,  2016  but
the Circle Inspector of Police and other officers  remained  mute  witnesses
to a violation of the order of the Additional District Magistrate.
      It was then concluded:
“The conclusion is  therefore  inescapable  that  the  field  officers  have
failed in implementing the order of the District  Magistrate;  in  following
up the field situation on a minute to minute  basis  so  that  this  tragedy
could have been averted.



There is absolute dereliction of duty and abdication  of  responsibility  on
the part of the ACP, Chathanur and  DCP,  Kollam  City  in  not  effectively
monitoring the situation in the temple in the  night  of  9th  April,  2016,
resulting in a tragedy claiming more than 110 human lives.



In the circumstances, it is not desirable  to  keep  the  three  officers  -
Commissioner of Police,  Kollam  City,  Assistant  Commissioner  of  Police,
Chathanur and Circle  Inspector  of  Police,  Paravur  -  in  their  present
postings any longer. They  should  be  kept  out  of  their  field  postings
pending disciplinary proceedings for  major  penalty.  Their  suspension  is
warranted in public interest.”

27.   The Note dated 13th April, 2016 appears to  have  been  placed  before
the Chief Minister of the State on 14th April, 2016 but he did not pass  any
order thereon and the file was returned only  after  the  elections  to  the
Legislative  Assembly  were  over  in  May  2016.  However,   what   is   of
significance, as far as  the  present  appeal  is  concerned,  is  that  the
appellant was not found blameworthy in any manner whatsoever –  it  is  only
the three police officers at the field level in Kollam City,  Chathanur  and
Paravur who were found to be at fault and their suspension and transfer  was
recommended.

28.   At this stage, it may be mentioned that the results of  the  elections
to the Kerala Legislative Assembly were declared on 19th May, 2016  and  the
political party of the incumbent Chief Minister did not secure  a  majority.
Consequently,  the  present  government  with  a  different  Chief  Minister
assumed office on 25th May, 2016. It  seems  that  the  concerned  file  was
returned only around this time.





Suo motu proceedings in the High Court
29.   In the meanwhile, soon after the Puttingal Temple tragedy, the  Kerala
High Court took notice of  the  tragedy  and  registered  a  suo  motu  writ
petition being W.P. (C)  No.14978  of  2016.   In  this  writ  petition,  an
affidavit was filed by the Chief Secretary  of  the  State  on  13th  April,
2016.  The affidavit gives the sequence of events which is more or less  the
same as in the Note dated 13th April, 2016. With regard to the role  of  the
police, he stated in paragraph 6 of the affidavit as follows:
“Subsequently on 09.04.2016, the police made all bandobust arrangements  for
the conduct of the festival and there was a scheme prepared  by  the  police
for crowd management as well to prevent  commission  of  offences.   In  the
night of 09.04.2016 thousands of people gathered at the temple to watch  the
fire works display.  The police officials as well as the  Tahsildar,  Kollam
were present at the  temple  premises.   The  Circle  Inspector  of  Police,
Paravoor who was on duty in the temple compound,  noticing  the  preparation
made by the organizers for the fire works display after the lowering of  the
festival flag from the flag mast at 9.30 p.m. asked the  office  bearers  of
the Temple Committee to show the order  granting  permission  of  the  same.
They said that sanction had  been  obtained  from  the  Additional  District
Magistrate and somebody would be bringing it to the spot. In  the  meanwhile
it was announced through the public address system that  the  committee  had
permission  to  conduct  display  of  fire  works  (Vedikkettu)   from   the
Additional District Magistrate and there would be a display of  fire  words.
The Circle Inspector of Police asked to wait until the permit  was  actually
shown to him.  Instead, the temple authorities violating  the  law,  defying
the lawful direction of the authorities started to  ignite  the  fire  works
abruptly.  When the  fire  works  (Vedikkettu)  started  huge  crowd  rushed
forward to view it.  All officials including the Circle Inspector of  Police
immediately went to the ground for  managing  the  crowd,  since  there  was
surge of people.  It is submitted that around 03.00 a.m. on 10.04.2016  some
spark from the fire works fell inside the fire works shed  (Kambappura)  and
resulting in explosion causing heavy casualties.”



30.   In his affidavit, the Chief Secretary also mentioned that  a  judicial
commission has been set up, headed by a former  Judge  of  the  Kerala  High
Court, to look into all aspects of the Puttingal  Temple  tragedy.   It  was
noted that investigation into the crime, which resulted in the  tragedy  was
handed over to the CB-CID and a  team  headed  by  the  Additional  Director
General  of  Police  (Crime)  was  constituted.   We  were  told  that   the
investigation was transferred to the CB-CID on 11th April, 2016. It  appears
that  the  writ  petition  is  still  pending  disposal  and  the   judicial
commission has not yet given its report.

31.   Significantly, even the Chief  Secretary  did  not  make  any  adverse
comment against the appellant.

Jisha Murder case
32.   On 28th April, 2016 another terrible incident  occurred,  namely,  the
brutal murder of a young Dalit girl Jisha within  the  jurisdiction  of  the
Kuruppumpady  police  station.  On  3rd  May,  2016  the  appellant  sent  a
communication to the Additional Chief Secretary (N/C) giving the details  of
the  crime  and  the  initial  investigation.  The  communication  reads  as
follows:
“Crime No. 909/16 u/s 449,  302  IPC  of  Kuruppumpady  Police  Station  was
registered at 9.30 p.m. on 28.04.2016 on the basis of  the  statement  given
by one Anas, Panchayat Member there.  This was  related  to  the  murder  of
Jisha, aged 30/2016 years who was found murdered in her house  on  the  bank
of a canal.  Within a short time, District  Police  Chief,  Ernakulam  Rural
also reached the  spot  and  the  entire  team  started  investigation.  The
deceased was staying with her mother Smt.  Rajeswari.   It  is  known  that,
Jisha’s father belongs to SC community and Smt.  Rajeswari  belongs  to  OBC
community.  All scientific investigation  procedures  are  adopted  in  this
case.  IGP Ernakulam Range, who had experience  of  working  in  CBI  for  7
years is personally supervising the investigation from  29.04.2016  onwards.
They have formed  a  good  investigation  team  with  DySP,  Perumbavoor  as
Investigating Officer.  Efforts are taken to identify  the  accused  through
scientific methods.

The post-mortem report of the deceased has revealed that  the  deceased  had
been attacked with more than one weapon.  Brutality of the  attack  is  also
noticed.  The time of the death is estimated to be  between  4.30  p.m.  and
5.00 p.m. on 28.04.2016.  The investigation is in full swing by one  of  the
best team available in the state.  It is expected that the  accused  can  be
clearly found out within a short time.”



A Special Investigation Team  consisting  of  28  officers  has  since  been
constituted to investigate and prosecute the crime. For the present,  it  is
not advisable to say anything more on this subject.

Notes of 26th May, 2016 and the appellant’s transfer
33.   Other than the terrible murder of Jisha nothing of significance  seems
to have transpired between 13th April, 2016 and 26th May, 2016 or  at  least
the official  files  do  not  reveal  anything  of  significance.   However,
elections to the Legislative Assembly had intervened  in  the  meantime  and
another Government assumed office.

34.   On 26th May, 2016 the Additional Chief Secretary  (Home)  put  up  two
Notes to the (recently elected) Chief Minister. The first Note suggests  (by
way of an example) that it was prompted  by  a  report  in  the  New  Indian
Express of 18th April, 2016 wherein the appellant expressed  the  view  that
the police alone cannot be blamed for  the  Puttingal  Temple  tragedy.  The
newspaper report reads:



Don't Blame the Police Alone: DGP[5]
By Pradeep Pillai  |   Published: 18th April 2016 03:58 AM  |
Last Updated: 18th April 2016 03:58 AM  |   A+A A-   |

KOCHI: DGP T P  Senkumar  has  hit  right  back.  “Where  was  the  ADM  and
Tahasildar when tragedy struck Puttingal Devi Temple at Paravur?  Why  there
is  no  action  against  Revenue  and  other  officials  concerned,”   asked
Senkumar, in response to a report submitted by  Additional  Chief  Secretary
Nalini Netto in which she recommended suspension of three police officers.
In a report submitted to the Chief Minister, the DGP  pointed  out  that  it
was not fair to blame the police alone for the tragedy.
Officials  of  the  district  administration,   Pollution   Control   Board,
Directorate  of  Explosives,  Environmental  Engineering,  Fire  and  Rescue
services should also be held accountable. Action, if any,  should  be  taken
against all,” he argued.
Senkumar also pleaded not to take disciplinary action till the Crime  Branch
probe is over. “I am not saying that there is no failure on the part of  the
police. When fault finding is being done it has to be done  impartially  and
everyone responsible should be made accountable,” he told Express.
“How did Thrissur Pooram go on? There was societal pressure.  An  all  party
meet was called, High Court had intervened and  a  collective  decision  was
taken to take precaution and ensure smooth conduct. When we take  a  deviant
move from previous years it should be done sufficiently early and  publicity
given.
“Once you had decided to  ban  the  fireworks  the  district  administration
should have called a meeting of officials concerned  from  all  departments.
What was the plan of action? Considering  the  large  gathering  during  the
fireworks display, a law and order situation should  have  been  anticipated
and suitable directions  also  should  have  been  given.  Revenue  officers
should have been present to help the police take action,” he noted.
“The Tahasildar was supposed to be there. Instead of merely  complaining  to
the police, he could also have called the District  Collector  and  informed
the possibility of a violation. It is  reported  that  he  went  home  after
midnight and returned only in the morning. If the CI on the field is  to  be
blamed, the Tahasildar  should  also  be  equally  responsible.  It  is  not
correct to start looking for  scapegoats  once  something  goes  wrong,”  he
said.
Further stressing his point, Senkumar  said:  “The  ADM  vanished  from  the
scene. Did he seek permission of the Chief Electoral Officer before  leaving
the district for his home in Ernakulam? It is  too  much  to  say  that  the
police alone is responsible after things went out  of  hand.  It  is  wrong,
partial,” the DGP said.


35.   In the first Note dated 26th May, 2016 the Additional Chief  Secretary
(Home) explained that the earlier Note dated 13th April, 2016  dealt  mainly
with the report of the State Police Chief dated 13th April,  2016.  She  had
then confined herself to examining the critical  issues  only  and  did  not
elaborate on the “peripherals”.  Therefore, she  submitted  the  Note  dated
26th May, 2016.

36.   On a reading of the first Note, it appears to be in the  nature  of  a
counter  affidavit  to  certain  observations,  comments   and   conclusions
recorded more than a month earlier by Senkumar  in  his  report  dated  13th
April, 2016. In any event, the Additional Chief Secretary  (Home)  concluded
the Note by expressing the opinion that:

“….. Even if all other departments are ticked off for contributory  failure,
it will in  no  way  mitigate  or  absolve  the  District  Police  from  its
responsibility, as it is the police which has to  publicise  the  ban  order
and implement it effectively.   The  primary  responsibility  for  the  said
tragedy therefore rests fairly and  squarely  on  the  District  Police  and
there is no hiding from this fact.  The DGP as head of the police  force  is
expected to evaluate without fear or favour the  performance  of  his  force
and take to task those found remiss in the line of duty.  Here,  instead  of
providing proper leadership, the DGP has gone overboard  to  protect  erring
police officials, sending a very wrong and dangerous message,  not  just  to
the force, but also to the public, which could have far reaching  disastrous
consequences.
In addition to all these, the action of the DGP in trying  to  interfere  in
an undesirable manner the functioning  of  the  investigating  team  of  the
Crime Branch which is probing the Puttingal  temple  tragedy,  can  be  seen
from the devious means adopted by him.  In his letter  dated  nil,  the  DGP
gave a panel of names for replacing ACP, Chathannur on the  request  of  the
ADGP (Crimes).  But strangely enough, both the  names  given  are  those  of
officers who have been part of the investigating team of the  Crime  Branch.
Even when the ADG Crimes requested that the investigating  team  should  not
be changed, no action was taken by the DGP.  Finally a fresh  panel  had  to
be called for by the Government.  Even if it is argued that the  names  were
given inadvertently, not taking action on the request of the  ADGP  (Crimes)
to retain  his  investigating  team,  is  reason  enough  for  presuming  an
undesirable motive.

All these point to an  inefficient  and  ineffective  leadership,  which  is
highly detrimental  to  a  huge  uniformed  force  like  the  State  Police,
entrusted with the dual responsibilities of maintaining law  and  order  and
prevention and detection of crime,  in  a  transparent  manner  and  to  the
satisfaction of the public at large.”



37.   On the same day, that is  on  26th  May,  2016  the  Additional  Chief
Secretary (Home) put up a second Note to the Chief Minister and this was  on
the Jisha murder case.  In the second  Note,  there  is  a  reference  to  a
report made by the Director  General  of  Police  (Senkumar)  on  the  Jisha
murder case.  The only allegation made  in  the  second  Note  is  that  the
report of the Director General of Police is  silent  on  the  issue  why  no
action was taken against certain officers who had delayed the  recording  of
the First Information Report in the Jisha murder or the delay in  forwarding
the First Information Report  to  the  concerned  Magistrate.   It  is  also
alleged that the report of the Director  General  of  Police  is  completely
silent on the callous handling  of  the  scene  of  crime  and  the  initial
investigation steps. The second Note  then  goes  on  to  highlight  certain
contradictions between the report of the Director  General  of  Police,  the
First Information Report and the First Information Statement.   We  make  no
comment on this at all since this is a matter that might come up during  the
trial.

38.   In the second Note, the Additional Chief  Secretary  (Home)  concludes
from the above, that the control and  discipline  in  the  police  force  is
lacking, pointing to poor leadership and direction of the  Director  General
of  Police  and  that  there  is  a  lack  of  integrity,  transparency  and
efficiency of the police force in general in handling the Jisha murder  case
that  seems  to  have  seriously  eroded  the  confidence  of  the   public,
especially women in particular, reflecting poorly on the leadership  of  the
force.

The order cutting short the tenure

39.   Acting on the above Notes, the Chief Minister took a decision on  27th
May, 2016 to replace the appellant. This decision is under challenge and  it
reads as follows:

“It has been decided to replace the present Director General of  Police  and
State Police Chief in the wake of the fact that his leadership has not  been
satisfactory leading to serious dissatisfaction  among  the  general  public
about the efficiency and transparency of the  Police  Force  in  the  State,
especially in regard to the Puttingal Temple Incident and the  Jisha  Murder
case. The Committee Constituted for the selection of the  DGP  may  meet  at
the earliest and examine the  profiles  of  the  officers  in  the  zone  of
consideration and place the facts before the  Government  for  consideration
to enable a decision to be taken.”



The decision was ratified by the Cabinet on 1st June, 2016 and given  effect
to on the same day.

40.   It will be apparent from a reading of the decision that  what  weighed
with the Chief  Minister  was  only  one  ground,  namely,  the  appellant’s
unsatisfactory leadership  leading  to  serious  dissatisfaction  among  the
general public about the efficiency and transparency of the police force  in
the State, especially in regard to the  Puttingal  Temple  tragedy  and  the
Jisha murder case.



Proceedings in the Central Administrative Tribunal

41.   Feeling aggrieved by his transfer and consequent removal as the  State
Police Chief, the appellant challenged the order dated  1st  June,  2016  in
the Central Administrative Tribunal through O.A. No. 446 of 2016.

42.   In response to the averments  and  allegations  made  by  Senkumar,  a
reply affidavit was filed by  the  Joint  Secretary  to  the  Government  of
Kerala, General Administration Special (A&C) Department  on  or  about  24th
June, 2016.  In the  affidavit  there  is  a  reference  to  lapses  by  the
appellant in dealing with the Puttingal Temple tragedy.  It is  stated  that
he hesitated to suspend or initiate action  against  the  delinquent  police
officers and  instead  adopted  an  attitude  of  safeguarding  them.   This
created widespread dissatisfaction among  the  general  public  and  in  the
media which the government was constrained to take seriously.  He  tried  to
white wash the police at the expense of other departments.  As the  head  of
the police force in the State, he was expected to evaluate, without fear  or
favour, the performance of the force and take to task those found remiss  in
the line of duty.  Instead of protecting the  interests  of  the  State  and
acting as the protector of the people, the appellant had gone  overboard  in
protecting erring police officers.  This sent a  very  wrong  and  dangerous
message, not just to the force but also to the  people.   Such  an  attitude
would have far reaching and  disastrous  consequences  which  could  not  be
tolerated in the larger public interest.

43.   In the  reply  affidavit,  there  is  an  allegation  that  after  the
Puttingal Temple tragedy, the appellant  attempted  to  interfere  with  the
Crime Branch investigation team probing the tragedy  and  that  this  raised
serious concerns for the State.

44.   It was alleged as follows:

“In his letter dated nil, the Director General of Police  gave  a  panel  of
names for replacing ACP, Chattannur on the request  of  the  ADGP  (Crimes).
But strangely enough, both the names given are those of  officers  who  have
been part of the investigating team of the Crime Branch. Even when  the  ADG
Crimes requested that the investigating  team  should  not  be  changed,  no
action was taken by the Director General of Police.  Finally, a fresh  panel
had to be called for by the Government.  Even  if  it  is  argued  that  the
names were given inadvertently, not taking action  on  the  request  of  the
ADGP (Crimes) to  retain  his  investigating  team,  is  reason  enough  for
presuming an undesirable motive.  In fact,  the  co-ordination  between  the
higher level police officers was also in question.”



45.   With regard to the Jisha murder case it was  stated  that  there  were
several serious lapses  on  the  part  of  the  police  officers  which  the
appellant tried to  white  wash,  ignore  or  justify.   It  was  stated  as
follows:-

“The murder shocked the conscience of the nation and especially  the  people
of Kerala.  The manner in  which  the  police  officer  proceeded  with  the
investigation of this crime is an everlasting shame to the state police.  No
measures were taken to safeguard the available evidence.   The  police  took
hasty steps to cremate the body.  In the  night  of  29.04.2016  though  the
incident came to the notice of the people throughout the State,  it  took  5
days for the State Police Chief to report the  matter  to  Government,  that
too, only after the news was widely flashed in the media.  This caused  wide
spread criticism in the media and among the public about the police  apathy.
 The report submitted by the State Police Chief even after  5  days  of  the
incident did not indicate the time of registration of FIR.  The  report  was
an attempt to focus on the skill  of  the  investigation  team  rather  than
informing the Government of the matters regarding the  brutal  murder.   The
Government received  a  second  report  on  04.05.2016,  which  was  totally
insensitive to the gravity of the  situation.    On  12.05.2016,  Government
received a third report highlighting  the  socio-economic  scenario  of  the
victim.  It is also indicated that there are such  vulnerable  families  and
such crimes are bound to happen.  In fact, there were  many  willful  lapses
on the part of the State Police Chief.  He failed to act  as  the  SPC.   He
was enthusiastic in protecting the delinquent officers.  As  a  result,  the
image of the State Government before the public and  sense  of  security  to
the public, were adversely affected.  This has resulted  in  an  unfortunate
situation.  There was not only failure in prevention  but  also  failure  in
detection.  The level  of  callousness  and  insensitivity  with  which  the
matter was handled by the SPC is appalling.   The  entire  issue  was  taken
over by the media and civil  society.   On  the  whole,  Government  had  no
option but to replace the State Police Chief with an efficient  and  capable
officer to deal with such a situation.”



46.   The Central Administrative Tribunal in  its  order  dated  21st  July,
2016 took the view that the replacement or transfer  of  the  appellant   as
the State Police Chief was not mala fide or with any oblique motive  or  for
extraneous  or  political  considerations  but  on  the  ground   that   the
Government was satisfied,  prima  facie,  that  the  appellant’s  shift  was
necessary as it caused serious dissatisfaction in the general  public  about
the efficiency of the police force satisfying the  conditions  mentioned  in
Section 97(2)(e) of the Act.

Proceedings in the High Court

47.   Feeling aggrieved  by  the  decision  of  the  Central  Administrative
Tribunal, the appellant  preferred a writ petition in the Kerala High  Court
being O.P. (CAT) No. 205 of 2016.  This writ petition was heard and  decided
by a Division Bench of the Kerala High Court and by  the  impugned  judgment
and order dated 25th January, 2017  it  was  dismissed.   Unfortunately  the
counter affidavit filed by the State (if any counter affidavit  was  at  all
filed) is not on our record.

48.   It was held by the High Court, inter alia,  that  the  Government  was
prima facie satisfied that  action  was  required  to  be  taken  under  the
provisions of Section 97(2) (e) of the Act  and  that  there  were  no  mala
fides in the transfer of  the appellant particularly due to  the  change  of
government.  It was held that the displacement of the  appellant  was  based
on the subjective satisfaction of the government  and  that  the  action  or
inaction on the part of the appellant was correct or sustainable was  not  a
matter of scrutiny before the Court.  It was further held that  the  Central
Administrative Tribunal had approached the issue in the correct  perspective
and the finding and reasoning  given  for  declining  interference  did  not
warrant any exercise of jurisdiction of the High  Court  to  set  aside  its
order.

49.   It is important to note that the High Court made no reference  to  the
alleged interference by the appellant in the CB-CID investigations into  the
Puttingal Temple tragedy.

50.   It is against this decision of the High Court that the present  appeal
has been instituted.

Proceedings in this Court
51.   The appeal directed  against  the  decision  of  the  High  Court  was
initially listed for preliminary hearing on 6th March, 2017 when notice  was
issued to the respondents. In response to the notice,  the  Chief  Secretary
of the State filed  a  counter  affidavit  on  23rd  March,  2017  virtually
reiterating the contents of the earlier affidavits.  It  is  stated  in  the
affidavit that Section 97(2)(e) of the Act which was invoked  in  the  case,
contemplates a prima facie satisfaction of  the  government  that  there  is
serious dissatisfaction in the general public about the  efficiency  of  the
police  in  the  jurisdiction  of  a  police  officer.   The   prima   facie
satisfaction is the subjective satisfaction of the  government  and  is  not
open to judicial scrutiny in the sense of propriety of the  satisfaction  on
an objective appraisal of facts.

52.   Significantly, it is reiterated that the  primary  responsibility  for
the Puttingal Temple tragedy rests  fairly  and  squarely  on  the  district
police and there is no hiding from this fact.  The appellant as head of  the
police  force  was  expected  to  evaluate  without  fear  or   favour   the
performance of his force and take to task those found remiss in the line  of
duty.   Instead  of  providing  proper  leadership,  he  went  overboard  in
protecting erring police officials,  sending  a  very  wrong  and  dangerous
message, not just to the force, but also to the  public,  which  could  have
far reaching disastrous consequences. It is further  stated  that  all  this
points  to  an  inefficient  and  ineffective  leadership  which  is  highly
detrimental to a huge uniformed force like the State Police, entrusted  with
dual responsibilities of  maintaining  law  and  order  and  prevention  and
detection of crime in a transparent manner and to the  satisfaction  of  the
public at large. It is stated that a responsible government  is  accountable
to the general public and a responsible police officer acting  in  a  manner
not suitable to the occasion cannot be permitted to  continue  in  the  post
when the issues involved are sensitive and have  far-reaching  consequences.
The Council of Ministers in the State was seized of the issues  and  it  was
in pursuance of the decision of the Council of Ministers that the  appellant
was transferred.

53.   In this affidavit, a reference  is  made  to  the  report  dated  13th
April, 2016 forwarded by the appellant to  the  Additional  Chief  Secretary
and which has been referred to above.  It is stated that in the report,  the
appellant’s attempt and attitude was more to insinuate the lapses  resulting
in the tragedy on the district administration while seeking to  assert  that
the entire blame cannot be put on the police.  The course of events  clearly
revealed that adequate action was not taken against  the  delinquent  police
officers or such  action  was  not  recommended  by  the  appellant  at  the
appropriate  time.   This  contributed  to  the   dissatisfaction   on   the
efficiency of the police in the minds of the general public. In the  counter
affidavit there is no reference to the Jisha murder case or to  the  alleged
interference in the CB-CID investigations in the Puttingal Temple tragedy.

54.   A further detailed counter affidavit was filed by the Chief  Secretary
on 10th April, 2017. In the detailed counter affidavit the facts  and  views
relating to the Puttingal Temple  tragedy  are  reiterated  and  it  is  not
necessary to go over them again.

55.   However, in the detailed counter affidavit it  was  alleged  that  the
appellant  was  trying  to  interfere  in  the  functioning  of  the  CB-CID
investigating team into the Puttingal Temple tragedy.

56.   It was stated that while the appellant has asked for the  transfer  of
one  Deputy  Superintendent  of  Police,  Tirur  on  28th  April,   2016   a
communication was received from the Chief  Electoral  Officer  on  5th  May,
2016 mentioning the transfer of the Deputy Superintendent of Police,  Tirur,
as well as the transfer of the Assistant Commissioner of Police, Chathanur.

57.   As  a  replacement,  the  appellant  suggested  Gopakumaran  Nair  and
Radhakrishnan, but  the  Additional  Director  General  of  Police  (Crimes)
(investigating the Puttingal Temple tragedy) wrote to the appellant  with  a
copy of the letter to the Home Secretary requesting  that  Gopakumaran  Nair
should not be transferred since he was part of the team  investigating  into
the tragedy. Similarly and for the  same  reason,  the  Additional  Director
General of Police (Crimes) objected to Radhakrishnan being appointed as  the
Assistant Commissioner of Police,  Chathanur.  Eventually,  Velayudhan  Nair
was  posted  as  the  Assistant  Commissioner  of  Police,  Chathanur.   The
conclusion drawn by the Home Secretary was  that  placing  Gopakumaran  Nair
(or Radhakrishnan) as  the  Additional  Commissioner  of  Police,  Chathanur
would put him under the jurisdiction of the Commissioner of  Police,  Kollam
City, whose role was under investigation and therefore “these  circumstances
were  reasonable  enough  for  presuming  an  undesirable  motive”  of   the
appellant.
58.   There is also a reference to a letter dated 10th  May,  2016  sent  by
the Home Secretary to the Director General,  Election  Commission  of  India
wherein it is mentioned that the Government was not aware  of  the  proposal
for the transfer of the Assistant Commissioner of  Police,  Chathanur  until
it received the communication dated 4th May, 2016.   It  is  not  clear  why
such a reference is made in the detailed counter affidavit –  is  it  sought
to be suggested that the appellant  had  influenced  the  Director  General,
Election Commission of India  to  transfer  the  Assistant  Commissioner  of
Police, Chathanur.  If that is the suggestion it is extremely unfortunate.

59.   Adverting to the Jisha murder case, it was alleged that since  details
were not made available to the government with regard to  the  murder  which
had raised a serious public outcry,  the  Home  Secretary  sent  a  detailed
questionnaire on 4th May, 2016 to the Inspector General  of  Police  with  a
copy to the appellant asking for full details as to the steps taken.

60.    In  response,  the  Inspector  General  of  Police  replied  to   the
questionnaire but the appellant did not do so but  only  enclosed  an  order
establishing a Special Investigating Team of 28 officers to investigate  the
murder.

61.   On a subsequent occasion, the appellant submitted  another  report  to
the Home Secretary on 12th May,  2016  wherein  he  failed  to  address  the
crucial issue of the cremation of the victim  soon  after  the  post  mortem
even when forensic investigation was under  way  as  to  a  possible  sexual
assault.   The appellant also did not address any of  the  controversies  in
the public domain such as protest marches by various organizations.

The correct perspective
62.   However, what is important about the  detailed  counter  affidavit  is
that it places the entire case in the proper perspective  in  the  following
words:

“The question  was  not  about  his  involvement  directly  in  any  of  the
incidents, the question was how he, as a Chief of the  State  Police,  dealt
with the  situation  where  there  was  great  public  concern  about  these
incidents.  The first related to the firework tragedy in  a  temple  complex
and the second related to lapses in the investigation into the murder  of  a
young law student.

The Police Chief is not personally responsible either  for  supervising  the
conduct of events or adherence to  safety  measures  in  relation  to  large
public  gatherings  nor  is  the  Police  Chief  directly  incharge  of  the
investigations. However, where the conduct of the  police  appears  to  fall
short of the standards demanded by the law, the Police Chief is expected  to
conduct himself in a manner that restores public  faith  and  confidence  in
the police and in the Government and not to take a partisan view to  protect
his officers.  A Police Chief who conduct himself in a manner  that  creates
dissatisfaction in the general public about the  efficiency  of  the  police
can be for that reason transferred by the  executive  government  under  the
statute.”



The issue therefore is not really about the details of the Puttingal  Temple
tragedy or the Jisha murder case – the issue is really  of  the  appellant’s
conduct post these two events, the expectations of the  general  public  (as
learned  counsel  for  the  State  put   it)   and   the   “serious   public
dissatisfaction”.



Discussion on the legal issues

63.   On the legal issues, it was  submitted  by  learned  counsel  for  the
State Government that only a prima facie satisfaction of the government  was
required to transfer the State Police Chief due to events subsequent to  the
Puttingal Temple tragedy and the Jisha murder.

64.   It was submitted that the State Government was prima  facie  satisfied
that the conduct of the appellant post the two  incidents  did  not  inspire
any confidence in his leadership and that  translated  into  serious  public
dissatisfaction on the efficiency and the role of the police.  This, it  was
submitted, was more than enough to enable the government  to  conclude  that
the appellant deserved to be transferred out as the State Police Chief.

65.   We are of opinion that the Puttingal  Temple  tragedy  and  the  Jisha
murder, both extremely tragic events, were not and were admittedly  not  the
basis for the transfer  of  the  appellant.   The  correct  perspective  was
placed by  learned  counsel  for  the  State  of  Kerala  and  that  is  the
subsequent conduct of the appellant in failing to take  action  against  the
errant police officers for the Puttingal Temple tragedy and that  he  failed
to provide an adequate response to the Jisha murder.   It  was  argued  that
cumulatively, this indicated that the appellant was  not  suited  to  be  in
charge of the State Police and therefore deserved to be replaced.

66.   Our attention was drawn to E.P. Royappa v. State of Tamil Nadu[6]  and
particularly the following passage in paragraphs 87 and 88 of the Report:
“Now, two important considerations must weigh with  us  in  determining  our
approach to these questions. First, the post of Chief Secretary is a  highly
sensitive post. It is a post  of  great  confidence  —  a  lynchpin  in  the
administration — and smooth functioning of the administration requires  that
there should  be  complete  rapport  and  understanding  between  the  Chief
Secretary and the Chief Minister. The Chief Minister  as  the  head  of  the
Government is in ultimate charge of the administration and it is he  who  is
politically answerable to the people for the achievements  and  failures  of
the Government. If, therefore, for any  valid  reason  the  Chief  Secretary
forfeits the confidence of  the  Chief  Minister,  the  Chief  Minister  may
legitimately, in the larger interests of  administration,  shift  the  Chief
Secretary to  another  post,  provided  of  course  that  does  not  involve
violation of any of his legal or constitutional  rights.  There  can  be  no
question in such  a  case  as  to  who  is  right  and  who  is  wrong.  The
displacement of the Chief Secretary from his post in such a case  would  not
be arbitrary and it would not attract the inhibition of Articles 14 and  16.
It may, however, be pointed out that such an action  would  not,  we  think,
ordinarily be taken except for the  most  compelling  reasons,  because,  if
resorted to without proper  justification,  it  would  tend  to  affect  the
political neutrality of the public service and lead  to  demoralisation  and
frustration amongst the public servants.

Secondly…So long as the transfer is made on account  of  the  exigencies  of
administration and  is  not  from  a  higher  post  to  a  lower  post  with
discriminatory preference of a junior for  the  higher  post,  it  would  be
valid and not open to attack under Articles 14 and 16.”



67.   In Royappa the concern of this Court was in relation to  the  post  of
the Chief Secretary of the State but which was  not  a  tenure  post.   This
Court observed that the post of Chief Secretary is a highly  sensitive  post
and the person holding that post is  the  lynchpin  in  the  administration.
The Chief Minister of the State must, therefore,  have  complete  confidence
in him or her and there must be complete rapport and  understanding  between
the Chief Secretary and the Chief Minister of the State.   Since  the  Chief
Minister is in ultimate charge of the administration of  the  State  and  is
answerable  to  the  people  for  the  achievements  and  failures  of   the
government, if the Chief Secretary forfeits  the  confidence  of  the  Chief
Minister, he or she may be shifted to another post in  the  larger  interest
of  administration  provided  there  is  no  violation  of  any   legal   or
constitutional right.
68.   Our attention was  also  drawn  to  an  observation  in  Citizens  for
Justice & Peace v. State of Gujarat[7] to the effect that  “the  appointment
of a government servant is the prerogative  of  the  particular  Government,
particularly, when it is a sensitive appointment of the Director General  of
Police.” It was then observed that this Court would not extend its hands  to
upset such an appointment under the judicial doctrine review.

69.   The broad principle laid down in Royappa is  obviously  applicable  to
the present case, but with two distinctions, one of them being that  it  did
not deal with a tenure post  or  an  appointment  and  replacement  under  a
statute. Of course and undoubtedly the post of Chief Secretary  of  a  State
and the Director General of Police  or  the  State  Police  Chief  are  both
sensitive posts. But the  sensitivity  attached  to  the  post  of  a  Chief
Secretary has a different dimension from the  sensitivity  attached  to  the
post of the State Police Chief, which is of a different  genre.  Unlike  the
Chief Secretary of the State, the State Police Chief  as  the  head  of  the
police force is concerned with the investigation of crimes,  law  and  order
and public order and not general executive  administration.   Prakash  Singh
makes it very clear that the police must be permitted  to  function  without
any regard to the status and position of any person  while  investigating  a
crime or taking preventive measures.   In  other  words,  the  rule  of  law
should not become a casualty to the  whims  and  fancies  of  the  political
executive.  In that event, the  State  Police  Chief  might  be  pressurized
laterally by the political executive and vertically by  the  Administration.
It is to ensure (and that is the rationale for the decision of  this  Court)
that no such pressure is exerted  on  the  State  Police  Chief  and  if  so
exerted, then the State Police Chief does  not  succumb  to  such  pressure,
that Prakash Singh provided  for  security  of  tenure  and  insulating  the
police from the Executive.

70.   As far as Citizens for Justice & Peace is concerned, that  is  clearly
inapplicable. We are not concerned with the appointment of the State  Police
Chief but with his removal from a tenure  post.  That  apart,  it  would  be
tragic if this Court were to come to a conclusion  that  the  removal  of  a
person from a sensitive but tenure appointment based on  a  stature  is  the
“prerogative” of the government and judicial review is not available  merely
because the post concerned is a sensitive one. If such a view were  to  hold
the field, Article 14 of the Constitution, the  citizen’s  struggle  against
executive arbitrariness would become irrelevant  and  this  Court  would  be
surrendering its constitutional obligation.

71.    We  may  also  recall  that  the  Bureau  of  Police   Research   and
Development, in a publication referred to by this  Court  in  Prakash  Singh
warned that excessive control by the political executive and  its  principal
advisors over the police has the inherent danger  of  making  the  police  a
tool for subverting the process of law. That  view  too  would  have  to  be
thrown out of the window if arbitrary removal from a tenure post based on  a
statute is taken out of the purview of judicial review  merely  because  the
person holds a sensitive post.

72.   We also cannot overlook the fact that in the  event  of  any  law  and
order or public order situation, it is  the  policeman  that  is  the  first
responder and not an officer of the administration. If the authority of  the
first responder were to get compromised, the citizen would not  have  anyone
to turn to for assistance resulting in the crumbling of  the  rule  of  law.
This certainly cannot be permitted. This is not to say that the police  must
be treated with kid gloves – all that is sought to be  conveyed  is  that  a
certain degree of  freedom  is  required  to  be  given  to  the  police  by
insulating  it  from  possible   attempts   to   control   its   independent
functioning, and there is a good explanation for this.

73.   The decision in Prakash Singh and the fashioning of  the  Act  respect
the necessity of the tenure appointment of the State Police  Chief.  Prakash
Singh made sure that the removal of the State Police Chief is not a  routine
sort of affair. However, the Act diluted this to some  extent  but  retained
the broad contours of the law laid down by this Court in its decisions.
74.   In Royappa this Court cautioned (in the passage quoted above)  against
the easy and mechanical displacement of the Chief Secretary  of  the  State.
In our opinion the caution is equally, if not more, applicable in  the  case
of the Director General of Police or the  State  Police  Chief.  This  Court
observed that the displacement of the Chief Secretary must be for  the  most
compelling reasons and should not be arbitrary, otherwise it “would tend  to
affect political neutrality” and  lead  to  demoralization  and  frustration
among public servants.

75.   It is for this  reason  that  as  far  as  the  police  is  concerned,
commission after commission  recommended  insulating  the  police  from  the
Executive and providing the force a degree of freedom, without political  or
executive interference so that it could impartially investigate  crimes  and
take preventive measures in law and order or public  order  situations.   It
is this that persuaded this Court in Prakash Singh to direct the setting  up
of a State Security  Commission  so  that  the  State  Government  does  not
exercise unwarranted influence or pressure on the State police.  It is  this
that persuaded this Court to direct that three persons  independent  of  the
government should be members of  the  State  Security  Commission  (provided
they are appointed by the State Government!) and  that  the  recommendations
of the Commission shall be binding on the  State  Government.   Furthermore,
to provide security of tenure this Court directed that the Director  General
of Police should have a minimum tenure of at least  two  years  irrespective
of the date of superannuation.  To maintain the independence of  the  police
from government control in matters relating  to  investigations  or  crimes,
preventive measures concerning law and order and public order, the  Director
General of Police may be relieved of responsibilities only  in  consultation
with the State Security Commission and that too for limited reasons.

76.   While the Kerala Legislature did not fully adopt the directions  given
by this Court while enacting the Act, the  Legislature  partially  and  only
partially accepted the spirit of the directions  issued  by  this  Court  in
maintaining the requirement that  the  State  Police  Chief  should  have  a
minimum tenure of two years and the reasons for shifting  the  State  Police
Chief from his or her post were limited and provided for in  Section  97  of
the Act.  The Kerala Legislature was, perhaps, quite right in adding  clause
(e) to Section 97(2) of the Act to the  effect  that  if  there  is  serious
public dissatisfaction about the efficiency of the police, a police  officer
may be transferred even if he or she has not completed the normal tenure  of
two years. While this transfer could be affected by the government on  being
prima facie  satisfied  of  public  dissatisfaction,  the  assessment  would
necessarily have to be made in an objective  and  not  a  subjective  manner
otherwise the  entre  purpose  of  a  secure  tenure  appointment  would  be
nullified. This is where there is a difference in  the  role  of  the  Chief
Secretary as the chief executive of the State and the  Director  General  of
Police of a State  –  their  roles  cannot  be  equated.   While  the  Chief
Secretary can be removed if he or she does not enjoy the confidence  of  the
Chief Minister or does not have a “complete rapport and understanding”  with
the Chief Minister, the removal cannot be  questioned,  unless  there  is  a
violation of some statutory or constitutional provision. But that is not  so
with the State Police Chief.  The reason is not far to seek  –  the  Cabinet
colleagues of the Chief Minister or senior bureaucrats (including the  Chief
Secretary) might need to be investigated in an  appropriate  case.  Can  the
Chief Minister then remove the State Police Chief  on  the  ground  that  in
such an event he or she does not enjoy the confidence of the Chief  Minister
or that there is no “complete rapport and understanding” between  the  State
Police Chief and the Chief Minister? The answer is quite obvious.

77.   Indeed for this reason, considered in the background of  the  security
of tenure, each of the various clauses in Section 97(2) of the  Act  clearly
and unmistakably point to action being permitted against  a  police  officer
only on the basis of  verifiable  material,  such  as  disciplinary  action,
involvement in a corrupt practice or a criminal offence, physical or  mental
incapacity, assessment on the basis of evaluation of the work of an  officer
by a superior etc. and not on the subjective whims and fancies of  those  in
a position of power. There is nothing to suggest that  as  compared  to  the
other clauses in Section 97(2) of the Act “serious  dissatisfaction  in  the
general public about efficiency of  police  in  his  jurisdiction”  must  be
given a different  treatment  or  interpretation.  The  opinion  of  serious
dissatisfaction must be based on verifiable material and  not  a  perception
that the Chief Minister or  other  senior  functionary  might  have  or  the
“public expectation” (as learned counsel for the  State  put  it)  that  the
Chief Minister might imagine. Quite often public opinion can  be  misleading
or motivated. It is  true  that  where  an  assessment  of  this  nature  is
required to be made, there would be an element  of  subjectivity,  but  that
subjective view must have some basis – not a mere perception.

78.   Section 97(2)(e) of the Act must, therefore, be  read  and  understood
in the context of  the  other  clauses  of  that  Section  which  relate  to
verifiable facts and events.  Clause  (e)  is  not  a  blanket  clause  that
permits the State Government to take any decision on the basis  of  what  it
believes to be public dissatisfaction. Otherwise, the State  Government  can
misuse it and justify an  adverse  action  on  the  ground  of  prima  facie
satisfaction outside the ambit of judicial review.
79.   In this context the following passages from M.A. Rasheed v.  State  of
Kerala[8] are quite telling on the issue of ‘satisfaction’ of  an  executive
authority:
“Where powers are conferred on public authorities to exercise the same  when
“they are satisfied” or when  “it  appears  to  them”,  or  when  “in  their
opinion” a certain state of affairs exists; or  when  powers  enable  public
authorities to take “such action  as  they  think  fit”  in  relation  to  a
subject matter, the courts will not readily defer to the  conclusiveness  of
an executive authority’s opinion as to the existence of a matter of  law  or
fact upon which the validity of the exercise of the power is predicated.

Where reasonable conduct is expected the criterion of reasonableness is  not
subjective, but objective. Lord Atkin in Liversidge v. Anderson[9] said:

“If there are reasonable grounds, the Judge has no further duty of  deciding
whether he would have formed the same belief any  more  than,  if  there  is
reasonable evidence to go to a jury, the Judge is concerned with whether  he
would have come to the same verdict.”

The onus of establishing unreasonableness, however, rests  upon  the  person
challenging the validity of the acts.

Administrative  decisions  in  exercise  of  powers  even  if  conferred  in
subjective terms are to be made in good  faith  on  relevant  consideration.
The courts inquire whether a reasonable man could have come to the  decision
in question without misdirecting himself on  the  law  or  the  facts  in  a
material  respect.   The   standard   of   reasonableness   to   which   the
administrative body is required to conform may range from  the  courts’  own
opinion of what is reasonable to the criterion of  what  a  reasonable  body
might have decided. The courts will find out  whether  conditions  precedent
to the formation of the opinion have a factual basis.”



80.   We are therefore clearly of opinion that the removal  or  displacement
of  any  senior  level  officer  from  a  tenure  appointment  must  be  for
compelling reasons and must be justified  by  the  concerned  authority,  if
called upon to do so, on material that can be objectively  tested.  This  is
what the rule of law expects and this is what Section 97 of the Act  expects
- the law must be faithfully implemented in a purposive manner.


Discussion on facts
81.   We have referred to the various affidavits as well  as  the  Notes  of
the Additional Chief Secretary for two reasons: Firstly, no guilt  or  lapse
has been directly attributed to  the  appellant  either  for  the  Puttingal
Temple tragedy or the Jisha murder case. On the  contrary,  as  far  as  the
Puttingal Temple  tragedy  is  concerned,  the  Additional  Chief  Secretary
recommended action against three specific police  officers  and  placed  the
file before the Chief Minister.  The appellant has been accused  of  failure
to take action against  these  errant  police  officers  (rather  supporting
them) and unjustifiably apportioning a part of the  blame  on  the  district
administration.  However, it must be noted that for  more  than  one  and  a
half months the Chief Minister took absolutely no action on the  Note  dated
13th April, 2016 but just seems to have kept it in his office.  Under  these
circumstances, it is not clear what action could be taken by  the  appellant
or any officer of the government  including  the  Chief  Secretary  and  the
Additional Chief Secretary against the  errant  police  officers  while  the
matter was pending with the Chief Minister. Could they or should  they  have
by-passed the Chief Minister?  In any event, nothing has been  shown  to  us
to suggest that the Chief Minister was reminded that some action  needed  to
be taken by him or that he should give some specific direction on  the  file
placed before him.  In our view therefore, if the appellant failed  to  take
any  action  against  the  errant  police  officers,  the  entire   official
machinery starting from the Chief Minister down to the Chief  Secretary  and
the Additional Chief Secretary are equally to blame. What is more  important
in this context is that  the  recommendation  to  take  action  against  the
errant police officers was made  to  the  Chief  Minister  and  not  to  the
appellant.

82.   As far as the Jisha murder case is concerned, the  allegation  against
the appellant is of a general  nature  highlighting  certain  contradictions
between his report, the First Information Report and the  First  Information
Statement. We ought not to comment  on  these  alleged  contradictions.  The
generalization made leads to the  conclusion  that  the  leadership  of  the
appellant was poor and that  he  lacked  control  and  discipline  over  the
police  force  which   eroded   public   confidence,   notwithstanding   the
responsibility of the large investigating team..

83.   The second and more serious reason for the transfer (though it is  not
mentioned by the Chief Minister) is to be found  in  the  first  Note  dated
26th May, 2016 of the Additional Chief Secretary (Home).  Perhaps  for  this
reason, it finds only a fleeting mention in the  reply  affidavit  filed  in
the Central Administrative Tribunal and in  this  Court,  but  the  detailed
counter affidavit elaborates this reason.  The allegation has been  detailed
above and it is not necessary to repeat it, except to say that according  to
the  Home  Secretary,  the  appellant  attempted   to   interfere   in   the
investigations relating to the Puttingal Temple tragedy.

84.   The law has been well-settled for many years now that  when  an  order
is passed in exercise of a statutory power on certain grounds, its  validity
must be judged by the reasons mentioned in the order.  Those reasons  cannot
be supplemented by other reasons through an  affidavit  or  otherwise.  Were
this not so, an order otherwise bad in  law  at  the  very  outset  may  get
validated through additional grounds later brought out in  the  form  of  an
affidavit.

85.   In this context it is worth referring to  Commissioner  of  Police  v.
Gordhandas Bhanji[10] in which it was said:

“Public orders, publicly made, in exercise of a statutory  authority  cannot
be construed in the light of explanations subsequently given by the  officer
making the order of what he meant, or of what was in his mind,  or  what  he
intended to do. Public orders made by public authorities are meant  to  have
public effect and are intended to affect the acting and conduct of those  to
whom they are addressed and must be construed objectively with reference  to
the language used in the order itself.”



This view was affirmed by the Constitution Bench of this Court  in  Mohinder
Singh Gill v.  Chief Election Commissioner.[11]

86.   Apart from  the  fact  that  it  is  not  permissible  for  the  State
Government to provide reasons in the  detailed  counter  affidavit  for  the
transfer of the appellant, additional reasons that are not mentioned by  the
Chief Minister, we find the reference to interference in  the  investigation
in the Puttingal Temple tragedy as somewhat incongruous.  There  is  nothing
to suggest what advantage could be gained by the appellant in scuttling  the
investigations in the Puttingal Temple tragedy,  particularly  since  in  an
earlier part of the detailed counter  affidavit  it  is  admitted  that  the
State Police  Chief  is  not  personally  responsible  for  supervising  the
conduct of events or adherence to  safety  measures  in  relation  to  large
public gatherings. Therefore, why would the appellant want to  interfere  in
the investigations?

87.   The facts and the  record  of  the  present  case  indicate  that  the
Puttingal Temple tragedy and the Jisha murder  were  not  the  flash  points
necessitating the transfer of the appellant.  The reason  for  his  transfer
was his conduct post the Puttingal  Temple  tragedy  in  not  taking  action
against  the  errant  police  officers  (but   supporting   them)   and   in
apportioning a part  of  the  blame  on  the  district  administration.  The
reference to the Jisha murder case was an attempt at padding up  the  reason
while the reference to the alleged interference  in  the  investigations  by
the CB-CID was a red herring or a ruse - the alleged  interference  was  not
even in the  contemplation  of  the  Chief  Minster.  The  addition  of  the
allegation of interference with the investigations in the  Puttingal  Temple
tragedy is a further attempt in that direction – to  somehow  or  the  other
nail the appellant.

88.   As already indicated above,  as  far  as  taking  action  against  the
errant police officers for the Puttingal Temple tragedy  is  concerned,  the
Chief Minister of the State also took no action for more than a month  after
the Note dated  13th  April,  2016  was  put  up  by  the  Additional  Chief
Secretary (Home).  The Chief Minister did not take any action  in  spite  of
the Note pinpointing the three errant police officers  against  whom  action
was required to be taken. It is difficult to hazard a guess  why  no  action
was taken.  But in any event, the fact of the matter  is  that  a  suo  motu
writ petition concerning the incident and its aftermath was pending  in  the
Kerala High Court, a judicial commission  chaired  a  former  Judge  of  the
Kerala High Court was appointed by the State Government  and  investigations
had been referred to the CB-CID  in  this  regard.  Surely  Senkumar  cannot
alone be pre-judged and blamed for this state of affairs.

89.    As  far  as  apportioning  a  part  of  the  blame  on  the  district
administration is concerned, it cannot be anybody’s case and indeed no  such
submission  was  made  before  us  that  the  district  administration   had
absolutely no role to play in the Puttingal Temple  tragedy.   While  it  is
true that a major part of the blame must rest on the  police  force  at  the
ground level, the  district  administration  perhaps  cannot  be  completely
absolved of its responsibility in the enormous tragedy that took place,  but
this is ultimately an issue that may have to be decided by the  Kerala  High
Court or by the judicial commission or by the CB-CID.  In  any  event,  this
can hardly be any justification  for  coming  to  the  conclusion  that  the
appellant alone deserved to be acted against only because he  supported  his
subordinates, while seeking  to  apportion  a  part  of  the  blame  on  the
district administration.

90.   Similarly, as far as the Jisha murder case is concerned  some  of  the
conclusions  arrived  at  on  the  file  placed  before  us  are  a   little
unfortunate and appear to be  prejudging  the  investigation.   What  impact
this might have on the trial is again anybody’s guess but surely  the  State
Police Chief cannot alone be blamed for any lapse in  investigation  or  any
delay in apprehending the accused. This is  more  so  considering  the  fact
that a Special Investigating  Team  had  been  appointed  consisting  of  28
officers to investigate the Jisha murder case. The  appellant  was  not  the
investigating officer in the matter.

91.   Perhaps, what might be a very serious infraction by the  appellant  is
the allegation that he tried to interfere with  the  investigations  in  the
Puttingal Temple tragedy. We  have,  therefore,  very  carefully  considered
this  allegation.   Unfortunately,  the  file  placed  before  us  does  not
indicate the circumstances in which the Assistant  Commissioner  of  Police,
Chathanur was  transferred  out  by  the  Election  Commission  but  we  are
entitled to assume that the decision of  the  Election  Commission  in  this
regard was completely bona  fide.  However, to attribute oblique motives  to
the appellant for recommending the  posting  of  a  member  of  the  Special
Investigating Team as Assistant Commissioner of Police,  Chathanur  so  that
he is under the jurisdiction of the Commissioner of Police, Kollam  City  is
a  little  far-fetched.   The  appellant  had  nothing  to   fear   in   the
investigations by the CB-CID since he was not involved in the  ground  level
arrangement in the Puttingal Temple. It cannot be said that the  recommended
officer was indispensable to the Special  Investigating  Team  even  if  the
Additional Director General of Police (Crimes)  may  have  objected  to  his
transfer.  It appears to us that too much is being  read  into  this  and  a
hypothesis that was not even accepted by the Chief  Minister  or  the  State
Government is being advanced as a definite conclusion. It is  being  assumed
that even though the appellant was  completely  absolved  of  any  lapse  in
respect of the Puttingal Temple tragedy, he wanted  to  interfere  with  the
investigation  for  no  apparent  reason  except  perhaps  to  benefit   the
Commissioner of Police, Kollam City for no apparent  reason.   There  is  no
evidence or material to arrive at any such conclusive opinion.

92.   Learned counsel for the State Government is right in  submitting  that
it is only a prima facie satisfaction that is to be arrived at by the  State
Government that the general public is dissatisfied with  the  efficiency  of
the police so as to enable  a  shifting  out  of  the  State  Police  Chief.
However, that prima facie satisfaction must  be based  on  some  cogent  and
rational material.  Nothing has been placed before us in this regard  except
the view that there was dissatisfaction among  the  general  public  on  the
efficiency of the police.  Mere repetition  of  the  provisions  of  Section
97(2)(e) of the Act is not sufficient -  there  must  be  some  material  on
record (other than a newspaper report) but unfortunately  nothing  has  been
pointed out to us during the course of submissions.  It  is  not  enough  to
merely contend that the State Government  was  subjectively  satisfied  that
the appellant ought to be transferred out as the State Police Chief.
93.   The subjective satisfaction of the State Government must be  based  on
some credible material, which this Court might not  analyze  but  which  can
certainly be looked into.  Having looked into the record  placed  before  us
we find that there is no material adverse to the interests of the  appellant
except an  expression  of  opinion  and  views  formed,  as  far  as  he  is
concerned, as late as on 26th May,  2016.   This  make-believe  prima  facie
satisfaction by itself cannot take out  judicial  review  of  administrative
action in the garb of subjective satisfaction of the State Government.
94.   We are a little disturbed by the resurrection of the Puttingal  Temple
tragedy and the Jisha murder case on 26th May, 2016 as soon as  the  present
government in Kerala assumed office. The  so-called  public  dissatisfaction
with regard to the role of the police in the Puttingal  Temple  tragedy  lay
dormant for more than one month and similarly, the role  of  the  police  in
the investigations in the  Jisha  murder  case  also  remained  dormant  for
almost a month.  Suddenly, these issues resurfaced as soon  as  the  present
government assumed office. This might perhaps be a coincidence but it  might
also be politically motivated, as  suggested  by  learned  counsel  for  the
appellant.  It is not necessary for us to delve into  this  controversy  nor
is it necessary for us to consider the submission  of  learned  counsel  for
the State Government that there was no politics involved in the transfer  of
the appellant since the first Note was put up before the Chief  Minister  by
the Additional Chief Secretary (Home) as far back as on  13th  April,  2016.
While this is so, it must not be forgotten that the Note dated  13th  April,
2016 did not cast any aspersion on the appellant.   In any event, if we  are
asked to choose between leaning in favour of the State or  the  citizen,  we
would certainly lean in favour of the citizen and give him  or  her  benefit
of the doubt.

95.   We are also  a  little  disturbed  with  the  view  expressed  in  the
detailed counter  affidavit  and  elsewhere  that  the  appointment  of  the
appellant was irregular if  not  illegal.  If  that  is  so  and  the  State
Government of Kerala is bent upon making irregular or  illegal  appointments
to sensitive posts, then no one can help God’s own country.

Conclusion
96.   On an overall consideration of the material on record and  considering
the case in its proper perspective, that is the events  post  the  Puttingal
Temple tragedy and the Jisha murder and not the  two  tragedies  themselves,
we have no hesitation in concluding that the  appellant  has  been  unfairly
and arbitrarily dealt with.  Under the circumstances, we  are  compelled  to
set aside the judgment and order of  the  Central  Administrative  Tribunal,
the impugned judgment and order of the High  Court  as  well  as  the  order
dated 1st June, 2016 and  direct  the  State  of  Kerala  to  reinstate  the
appellant Dr. T.P. Senkumar as the State Police Chief.



97.   The appeal is allowed.


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


New Delhi;                              ……………………………J
April 24, 2017                                 (Deepak Gupta)


-----------------------
[1]

      [2]               (2006) 8 SCC 1
[3]
      [4]               Research  Studies on Police and Prison Issues (1970-
2009) [Compendium] published by the Bureau of Police Research  and  Training
[page 81]
[5]

      [6]               (1997) 6 SCC 241
[7]
      [8]               (1998) 1 SCC 226
[9]
      [10]              http://epaper.newindianexpress.com/781747/The-New-
Indian-Express-Kochi/18042016#page/1/2 and
http://epaper.newindianexpress.com/c/9748784
[11]
      [12]              (1974) 4 SCC 3
[13]
      [14]              (2009) 11 SCC 213
[15]
      [16]              (1974) 2 SCC 687 paragraphs 8 to 10
[17]
      [18]              1942 AC 206, 228-229
[19]
      [20]              AIR 1952 SC 16
[21]
      [22]             1978 (1) SCC 405

there is no hard and fast rule to say that the evidence of the prosecution witnesses is equally reliable as against Bira & Bhira, as it was reliable against the two other accused. = The High Court has taken note of the fact that Atma Ram (in whose murder case Vakil Singh was accused) was father of accused Sant Lal. Role of Sant Lal in commission of crime to take revenge after the acquittal of the deceased, cannot be doubted. Involvement of Fatta, as he was caught by the villagers immediately after the incident, can also not to be doubted. But the presence of accused Bira @ Bhira who was Son-in-law of Atma Ram, and belonged to a separate village appears to be doubtful and it cannot be ruled out if his name was added due to enmity. We do not find sufficient reason to disagree with the above view taken by the High Court. Therefore, we are not inclined to interfere with the acquittal of Bira @ Bhira recorded by the High Court.

NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.  1581 OF 2013


State of Haryana                             … Appellant

Versus

Bira @ Bhira                                       …Respondent


WITH


               SPECIAL LEAVE PETITION (CRL.) NO. 3779 OF 2014


Fatta Ram                                          … Petitioner

Versus

State of Haryana                             …Respondent

                               J U D G M E N T



Prafulla C. Pant, J.


      Both Criminal Appeal filed by the State of Haryana and  Special  Leave
Petition filed by accused Fatta Ram, are directed against the  judgment  and
order dated 03.05.2012 passed  by  High  Court  of  Punjab  and  Haryana  in
Criminal Appeal No. 662-DB of 2007,  whereby  said  Court  has  allowed  the
appeal of Bira @ Bhira, and acquitted him  of  all  charges  in  respect  of
offences punishable under Sections 302, 323 read with Section 34  of  Indian
Penal Code (for brevity “IPC”), but maintained the conviction  and  sentence
recorded against remaining two accused, namely, Sant Lal and Fatta Ram.

2.    We have heard learned counsel for the parties and perused the  record.


3.    Prosecution story, in brief, is that  Vakil  Singh  (deceased  in  the
present case) was an accused in the case  of  murder  of  one  Atma  Ram  of
Village Nagal. He (Vakil Singh) was acquitted by  the  Apex  Court  about  a
month before the incident of the present case. On 08.05.2005 at about  11.00
a.m., he was coming along with his wife (PW-8 Balbiro) to his  village  from
Bicchian where the two had gone in connection  with  condolence  of  one  of
their relatives. PW-7 Tehla Ram along with his uncle Mohan  Singh  had  also
gone there and was ahead of them. At that point of time, the  three  accused
namely, Sant Lal, Fatta Ram and Bira @ Bhira  who  were  armed  with  deadly
weapons came on motorcycles and  intercepted  Vakil  Singh.  All  the  three
accused persons assaulted Vakil Singh. Accused Sant Lal gave a blow  with  a
‘Gandasi’ (heavy sharp edged weapon), accused Fatta Ram gave a blow  with  a
‘Lathi’ and Bira @ Bhira allegedly gave a blow  with  iron  rod  (handle  of
water pump).  PW-8 Balbiro resisted  but  she  was  also  assaulted  by  the
accused persons.  When Mohan Singh and  PW-7  Tehla  Ram,  who  were  ahead,
turned back, the three accused attempted to flee but  Fatta  Ram  fell  down
from his motorcycle as the same got skid and he  was  caught  by  villagers.
The other two managed to escape. PW-7 Tehla Ram took both the injured  Vakil
Singh and Balbiro to Mahavir Dal Hospital, Cheeka. Vakil Singh succumbed  to
the injuries and died in the hospital. The First Information Report (Ex. PH-
1) of the incident was lodged by PW-7 Tehla Ram on the very day. PW-13  Sub-
Inspector Brij Mohan of Police Station, Cheeka  started  the  investigation.
PW-2 Dr. Aman Sood along with team of  doctors  conducted  the  post  mortem
examination and prepared autopsy report.  The  investigation  was  completed
by PW-3 Sub-Inspector Surta Ram who submitted the charge sheet  against  all
the three accused for their trial in respect  of  offence  punishable  under
Section 302 IPC.

4.    After committal of the case, Sessions Judge,  Kaithal,  framed  charge
against all the three accused in respect of offences under Section 302,  323
read with Section 34 IPC to which all the three accused pleaded  not  guilty
and claimed to be tried. On this, prosecution got  examined  PW-1  Dr.  Ajit
Pal Singh, PW-2 Dr. Aman Sood, PW-3 Sub-Inspector Surta Ram, PW-4  Constable
Gurvinder Singh, PW-5  Head  Constable  Balwinder  Singh,  PW-6  Dr.  Romila
Jhanji, Medical Officer,  PW-7  Tehla  Ram  (informant  eye  witness),  PW-8
Balbiro (injured eye witness),  PW-9  Draftsman  Lachman  Singh,  PW-10  Ram
Mehar Singh, PW-11 Head Constable Bir Bhan,  PW-12  Assistant  Sub-Inspector
Dharam Pal and PW-13 Sub-Inspector Brij Mohan (Investigating  Officer).  The
prosecution evidence was put  to  the  accused  under  Section  313  of  the
Cr.P.C. in reply to which they pleaded that  the  evidence  adduced  against
them is false. In defence, on behalf of the accused DW-1 Ajmer  Singh,  DW-2
Garibu Ram and DW-3 Puran Singh were got examined.  The  trial  court  after
hearing the parties found that charge of offences punishable under  Sections
302, 323 read with Section 34 IPC is proved against all the  three  accused.
Accordingly, all  the  three  were  convicted  and  each  one  of  them  was
sentenced to undergo imprisonment for life and to pay fine  of  Rs.  5,000/-
(under Section 302 IPC), in default to undergo further six  months  rigorous
imprisonment.  Further, the trial court sentenced the  convicts  to  undergo
rigorous imprisonment for a period of six months under Section 323/34 IPC.

5.    Aggrieved by order  dated  16.05.2007/18.05.2007  passed  by  Sessions
Judge, Kaithal, in Sessions Trial No. 23 of 2006, the three  convicts  filed
Criminal Appeal no. 662-DB-2007 which  is  partly  allowed  by  High  Court.
Conviction  and  sentence  recorded  against  Sant  Lal  and  Fatta  Ram  is
maintained, but that of Bira @ Bhira was set aside, holding that  charge  as
against him is not proved beyond reasonable  doubt.  Consequently,  Criminal
Appeal No. 1581 of 2013  is  filed  by  the  State  of  Haryana  challenging
acquittal of Bira @ Bhira by the High  Court,  and  Special  Leave  Petition
(Crl.) No. 3779 of 2014 is filed by convict Fatta Ram which  is  clubbed  by
the Criminal Appeal filed by the State.

6.    Before further discussion, we think it just and proper to mention  the
ante mortem injuries found on the dead body of Vakil Singh by PW-2 Dr.  Aman
Sood. The same are being reproduced below:-

“1. Lacerated wound 8 x  2  cm  with  fracture  of  bone  in  left  temporal
parietal region. Brain matter was coming out of it.

2. Incised wound over left temporal region 3  x1  cm.  On  deep  dissection,
there is extra dural haematoma of the size of 5 x 3 cm.

3. Lacerated wound over the left maxillary region blood clotted  around  the
wound.

4. There was lacerated wound over the right ring  finger  with  fracture  of
proximal phalanx.”


According to PW-2 Dr. Aman Sood, the deceased had  died  due  to  shock  and
hemorrhage on account of injuries suffered by him on the vital parts.

7.    It is also relevant to mention here the injuries found on  the  person
of Balbiro by PW-6 Dr. Romila Jhanji on 08.05.2005 at about  4.00  p.m.  The
same are being reproduced below from MLR (Ex. P.G.):-
“1. A lacerated wound of 1 cm.  x  ½  cm.  on  the  left  cheek.  Wound  was
bleeding. She was referred to C.H. Kaithal  for  X-ray  of  left  cheek  and
expert opinion.

2. There was an abrasion of the size of 1 cm. x 1 cm. on left knee.”

8.    PW-8 Balbiro has narrated  the  prosecution  story  stating  that  her
husband was accused in connection with  murder  of  Atma  Ram,  and  he  was
acquitted by the Court. After release of her husband (Vakil Singh) from  the
jail they had shifted to village Darauli, and on the day  of  incident  they
had gone to village Bicchian.  She further told that on their  way  back  on
the day of incident at about 11.00 a.m.  the  accused  surrounded  them  and
assaulted. She has stated that accused Sant Lal gave blow with  Gandasi  and
accused Fatta assaulted with lathi.  She further  told  after  the  incident
she and her husband were taken to hospital by Tehla Ram. Statement  of  PW-2
is corroborated not only from  the  medical  evidence  on  record  discussed
above but also from the statement of PW-7 Tehla Ram.  Both  these  witnesses
have stated that Fatta Ram while fleeing fell down and  was  caught  by  the
villagers.

9.    PW-1 Ajit Pal Singh has proved the injuries found  on  the  person  of
accused Fatta Ram. The same are being reproduced below:-

“1. A lacerated wound 1.3 cm. x 2.5 cm x bone deep on left  parietal  region
4 cm from mid line of skull and 18 cm. from frontal hair  line.  Advised  X-
ray.

2. Lacerated wound 1 cm. x 1 cm. x bone deep on mid line of skull and 19  cm
from frontal hair line. Advised X-ray.

3. Lacerated wound 3cm. x 1.5cm x bone deep on  right  parietal  region  2cm
from mid line of skull and 19 cm. from frontal hair line. Advised X-ray.

4. Lacerated wound on right temporal region 6 cm. from mid line of skull,  5
cm. from right ear pinna and 9 cm. from frontal hair line, measuring  4.5  x
1.6 cm. x bone deep. Advised X-ray

5. Contused swelling on  right  fore-arm  3  cm.  below  right  elbow  joint
measuring 3 cm. x 4 cm. Advised X-ray.

6. Swelling 3 cm. x 2 cm. on right  side  of  back,  6  cm.  from  vertebral
colon, corresponding to L.4. X-ray was advised.”


      In view of the above evidence,  the  prosecution  story  further  gets
corroborated that after the incident Fatta Ram was  apprehended  and  beaten
by villagers.  As such, we find no error in the conviction recorded  against
him and the Special Leave Petition filed by him is liable to be dismissed.

10. Learned counsel for the special leave  petitioner  submitted  that  DW-1
Ajmer Singh (Sarpanch of the village) has not  corroborated  the  fact  that
the villagers caught Fatta Ram after the incident. We  have  carefully  gone
through the statement of DW-1 Ajmer Singh. What he has stated is  that  when
he saw many persons gathered at the place of incident where  the  dead  body
was lying, telephone call was given to the police. Since  this  witness  has
reached after the incident, as such, his statement does not throw  light  as
to the fact that whether Fatta Ram was caught or not by the villagers.

11.   Our attention is also drawn on behalf of the Special Leave  Petitioner
to the cross-examination of PW-1 Dr. Ajit Pal  Singh  who  has  stated  that
injuries No. 1 to 3 could  not  have  been  suffered  due  to  fall  from  a
motorcycle. On scrutinizing the statement of PW-1 Dr.  Ajit  Pal  Singh,  we
find that he has clarified  that  injuries  no.  4  to  6  could  have  been
suffered by the  accused  (Fatta  Ram)  by  falling  down.  Since  villagers
apprehended the said accused, other injuries could have  been  caused  while
he was caught by the villagers.

12.   On behalf of the State of Haryana (appellant), it is argued  that  the
High Court has erred in law in disbelieving the  testimony  of  injured  eye
witness (PW-8) and that of Tehla Ram (PW-7) as against Bira @ Bhira.  It  is
contended  that  the  evidence  of  the  prosecution  witnesses  is  equally
reliable as against Bira & Bhira, as it was reliable against the  two  other
accused.
13.   We have carefully gone through the impugned order passed by  the  High
Court. The High Court has taken note of the fact that  Atma  Ram  (in  whose
murder case Vakil Singh was accused) was father of accused  Sant  Lal.  Role
of Sant Lal in commission of crime to take revenge after  the  acquittal  of
the deceased, cannot be doubted. Involvement of Fatta, as he was  caught  by
the villagers immediately after the incident, can also not  to  be  doubted.
But the presence of accused Bira @ Bhira who was  Son-in-law  of  Atma  Ram,
and belonged to a separate village appears to be doubtful and it  cannot  be
ruled out if his name was added due to enmity. We  do  not  find  sufficient
reason to disagree with the above view taken by the High  Court.  Therefore,
we are not inclined  to  interfere  with  the  acquittal  of  Bira  @  Bhira
recorded by the High Court.

14.   For the reasons as discussed above, we find no  force  in  the  appeal
filed by the State of Haryana, and the Special Leave Petition filed  by  the
Fatta Ram. Accordingly, the Criminal Appeal and the Special  Leave  Petition
are hereby dismissed.

                                                            ………………………..…….J.
                                                               [N.V. Ramana]



                                                            ………………………..…….J.
                                                          [Prafulla C. Pant]
New Delhi;
April 24, 2017.

Despite of all pleas for mercy, they did not allow the injured persons to be taken to hospital, detained them in the house for long three hours and as a consequent, they were deprived of their medical treatment and when they were taken to the hospital, it was too late for Abdul Rahman, who succumbed to his injuries at the hospital. Hence, the common object and the intention of the accused persons is apparent. ”

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1062 OF 2007


              FAZAR ALI & ORS.            ........APPELLANT(S)


                                   VERSUS


             STATE OF ASSAM                 .........RESPONDENT



                               J U D G M E N T



ASHOK BHUSHAN, J.


1.    This appeal has been filed by eight accused who  have  been  convicted
under Section 302 read with Section 149 IPC and sentenced to under  go  life
imprisonment by trial court as well as by High Court.  The prosecution  case
is that on 12.11.1993 in  the  morning  at  about  8.00  AM  twelve  accused
persons have attacked complainant, his father Samsuddin, his  brother  Abdul
Rahman and his mother-in-law. Accused were armed  with  dao,  lathi,  jathi,
dagger etc.  After injuring Samsuddin and Abdul Rahman the accused  did  not
allow the injured to be taken to hospital for about three hours and  it  was
only when large  number  of  villagers  assembled  and  impressed  upon  the
accused to let the injured to be taken  to  hospital,  Samsuddin  and  Abdul
Rahman could be taken to hospital. Both  Samsuddin  and  Abdul  Rahman  were
referred to Nagaon Civil Hospital where Abdul Rahman died on  the  same  day
at 4.00 PM.
2.    A written complaint was submitted by Afazuddin son  of  Samsuddin  and
brother of Abdul  Rahman,  which  had  the  thumb  impression  of  Afazuddin
whereunder names of five accused Sekendar  Ali,  Abu  Taher,  Abdul  Sattar,
Fazar Ali and Akkash Ali were mentioned with seven other accused.  Complaint
was initially registered under Section 147, 148, 149 and 326  IPC  in  which
Section 302 IPC was added subsequent to death of Abdul Rahman.
3. I.O. on  the  same  day  of  incident  examined  Rustam  Ali,  Afazuddin,
Muslemuddin, Abdul Sattar (Son of  Mafizuddin),  Samsuddin,  Jakir  Hussain,
Giasuddin, Jahura Khatoon and Fatema Khatoon.
4.    After investigation of the appellants, the charge sheet was  submitted
against eleven accused, one of the accused  named  Abu  Taher  had  died  on
01.03.1999. Prosecution produced thirteen  witnesses  to  prove  the  charge
which included two Investigating Officers and  two  Medical  Officers.   The
trial court, after considering the entire evidence  on  record  by  judgment
dated 08.10.2002(Session Case No.20 of 99,  GR   No.979/93)   held  all  the
accused guilty and convicted them to the following effect:
"15.  So, in view of  discussion  above,  I  convict  and  sentence  accused
Sattar, Rafiqul, Akkash Ali, Fakaruddin, Nuruddin, Sekander,  Motin,  Idrish
Ali and Fazar to undergo rigorous imprisonment for one year each  for  their
offence punishable under Section 148 IPC and also  I  convict  and  sentence
all these accused persons to undergo their rigorous life  imprisonment  with
a fine of Rs. 1000/- each in default rigorous imprisonment  for  two  months
for their offence. Offence punishable U/s 302/149 IPC. I  also  convict  and
sentence accused Sattar, Rafiqul, Akkash Ali, Fakaruddin, Nuruddin  with  an
imprisonment for a period of six months for their  offence  punishable  U/s.
323/149 IPC. The  prosecution  failed  to  establish  case  punishable  U/s.
148/302/323/149 IPC against accused Islamuddin and Jakir Hussain  for  which
they are acquitted forthwith. The bail bonds of all  accused  persons  stand
cancelled. The  sentence  of  all  9  convicts  as  stated  above  will  run
concurrently.”


5.    It is also relevant to note  that  with  regard  to  the  incident  on
12.11.1993 a cross-case was also registered being Case No. 978/93  in  which
Samsuddin and three others were accused. In the cross-case, it  was  alleged
that injury was inflicted by  Samsuddin and his sons in which  Abdul  Sattar
received injuries.
6.    On cross-case Sessions  Case  No.  41/99  (G  R  Case  No.978/93)  was
registered under Section 325 IPC.  Accused Samsuddin and others by  judgment
dated 8.10.2002 were given clean aquittal in the cross-case.
7.    Accused aggrieved by the judgment, against the conviction  have  filed
a Criminal Appeal No. 420/2002. The High Court  after  hearing  the  learned
counsel for the  parties  vide  its  judgment  and  order  dated  21.12.2005
dismissed the  criminal  appeal,  aggrieved  by  which  judgment  the  eight
appellants have filed this appeal.

8.    Learned counsel for the appellant in support of  the  appeal  contends
that in First Information Report  which  was  lodged  by  Afazuddin  son  of
Samsuddin and brother of Abdul  Rahman(deceased)  had  mentioned  only  five
names of the accused whereas  charge  sheet  was  submitted  against  twelve
accused. It is submitted that Afazuddin claims  to  be  eye-witness,  hence,
there was no reason for not mentioning the names of all the accused  in  the
FIR and non-mention of other accused in the  FIR  naturally  indicates  that
others have been roped in subsequently.

9.    It is further submitted that there was a lot of contradiction  in  the
statement of witnesses recorded before the Court and  that  of  recorded  by
Police under Section 161 Cr. P.C. The  contradiction  in  evidence  of  eye-
witnesses makes their evidence untrustworthy.   The  trial  court  ought  to
have taken note of such contradiction and discarded  the  evidence  of  eye-
witneses.

10.   Learned counsel for the State refuting the submission of  the  learned
counsel for the appellants contends that mere non-mention of  other  accused
in the FIR cannot mean that  other  accused  could  not  have  been  charge-
sheeted after investigation.  It is  submitted  that  contradiction  pointed
out in the statement of  witnesses  does  not  in  any  manner  shake  their
evidence. The incident took place in the courtyard/joining pathway of  house
of Afazuddin.  All the accused  being  armed  with  different  weapons  have
caused injuries. Injured witnesses were not allowed to come out  from  their
houses for about three hours.  All the witnesses in  their  statements  have
proved the specific role of accused  in  causing  injury  to  Samsuddin  and
deceased Abdul Rahman. Both trial court and the High  Court  have  correctly
appreciated the evidence and relying on the evidence have rightly  convicted
the accused.

11.   We have considered submissions of learned counsel for the parties  and
perused the record.
12.   The first submission of learned counsel for  the  appellants  is  that
their being only five accused named in the  FIR  others  have  been  wrongly
roped in the FIR. He has submitted that Afazuddin, the informant  being  son
of the Samsuddin and being an eye-witness ought to have mentioned the  names
of all the accused who had participated in the incident.
13.    To appreciate this submission,  few  facts  need  to  be  noted.  The
translated copy of the First Information Report is  in  the  record  of  the
High Court, in the column of name and  residence  of  accused  following  is
mentioned:
“Name and residence of accused:-

                 1)    Sekandar Ali, S/O Amiruddin,
                 2)    Abu Taher, S/O Do.
                 3)    A. Sattar, S/O Eman Ali
                 4)    Tazor Ali, S/O Do.
                 5)    Akkash Ali, S/O. Amiruddin
                       and 7 others.

All are Vill. Durabandhi Gaon,
                 P. S. Moirabari,
                 Dist. Morigaon (Assam).”


14.    Further,  FIR  mentions  written  report  received  from  complainant
Afazuddin. The written report indicates that Afazuddin  has  put  his  thumb
impression on the FIR. The Afazuddin was examined as PW. 2.  In  the  cross-
examination, when he was put the question why names of  other  accused  were
not mentioned in the FIR, he stated the following:-

"Cross Examination: Giasuddin is my younger brother. I had  had  the  ejahar
written at a hotel in Mairabari bus syndicate premises. From that place  the
police station is about 100/150 yards away. I had not  gone  to  the  police
station before having had the ejahar written. I had had five  accused  named
in the ejahar.  I had told Karim  the  names  of  seven  others.  Karim  had
advised me to add those names only later. He had said that I  should  go  to
the police station with him later and add those seven names.”


15.   From  the  above,  three  facts  are  clear:-  Firstly,  FIR  although
mentions name of only five accused but FIR clearly mentions that seven  more
accused persons were there. Thus, FIR clearly mentions that  the  number  of
accused persons were twelve. Thus present is not a  case  where  only  those
five persons who were named, were accused, but FIR from the  very  beginning
is claiming that apart from those five, seven others are also accused.    In
the investigation, when names of seven others had surfaced the  charge-sheet
was submitted against twelve accused.   The submission that  since  in   the
FIR names of seven other accused were not disclosed,  they  could  not  have
been  charge-sheeted,  can  not  be  accepted.   Secondly,  in  his   cross-
examination informant clearly mentioned that he had told the names of  other
seven accused  persons  also to writer Karim, who had  written the FIR  but,
informant being illiterate had put only thumb impression on  the  FIR.   Not
naming other seven accused although,  number of  seven  other  accused  were
mentioned in the FIR is inconsequential and on  this  ground,  there  is  no
substance in the submission of the learned counsel for the  appellants  that
since names of other accused were not  mentioned  in  the  FIR  except  five
names, others could not have been convicted.
16.   Now, we come to the next submission of the  learned  counsel  for  the
appellant that there are contradiction in the statements made  by  witnesses
before the Court as compared to the statements made before the Police  under
Section 161 Cr. P.C.
17.   The  present  is  a  case  where  incident  took  place  in  adjoining
way/courtyard of the residential house of informant in the morning at  about
8.00 AM. The presence of the family members in the  house  at  Courtyard  of
informant was natural.   Three  injured  witnesses  were  examined  by   Dr.
Rafiqul Islam who had appeared,  as  PW.11  and  proved  the  injuries.  The
injuries were noted by Rafiqul Islam PW.11 inflicted  on  Samsuddin,  Jahura
Khatun and Afazuddin.  Dr. Rafiqul Islam PW.11 stated the following  in  his
evidence:
"On 12.11.1993, I was M&HO-I at Moirabari C.H.C. On  that  day,  I  examined
(1) Abdul Rahman, (2) Samsuddin, (3) Jahura Khatun,  and  (4)  Afazuddin  on
police requisition and found the following:-

(1)   Abdul Rahman, son of Md. Samsuddin of Village Dorabandi.  The  patient
was  referred  to  Nagaon  Civil  Hospital  for  further  investigation  and
treatment.

(2)   Samsuddin, son of Late Sudhir Seikh -

Lacerated injury on scalp, size 1½” X ½” X ½”. Multiple  abrasion  over  the
forehead. Fresh and simple  wounds  caused  by  blunt  object.  Patient  was
referred to Nagaon Civil Hospital.”

(3)   Jahura Khatun, wife of Ismat Ali
Swelling over the right arm, size  1½” X ½” X ½”.
Laceration over the left thumb, size 1” X ½” X ½”
Fresh and simple wounds caused by blunt object.

(4)   Afazuddin, son of Samsuddin -

Swelling over the right thumb. Swelling over the back.
Fresh and simple wounds caused by blunt object.”


18.   Both Samsuddin and Afazuddin have examined themselves  in  the  Court.
Samsuddin  examined  himself  as   PW.5  and  Afazuddin  the  informant  has
examined himself as PW.2. Jahura Khatun has been examined as PW. 9. All eye-
witnesses have corroborated  the  incident  and  have  proved  the  role  of
accused persons in causing injuries  to  Samsuddin,  Abdul  Rahman(deceased)
and others.
19.   PW.5 Samsuddin has proved the incident and the role of  the  different
accused in his eye-witness account.  Much emphasis has  been  laid  down  by
the learned counsel for the appellants that there are contradictions in  the
statement of eye-witnesses recorded before the  Court  as  compared  to  one
which was recorded  by  the  Police,  it  is  submitted  that  several  eye-
witnesses who appeared before the Court and assigned the role  to  different
accused had not so assigned to the different accused before the Police  when
their statement under Section 161 Cr.P.C. was recorded.
20.   All the eye-witnesses have assigned the role of  all  the  accused  of
causing injuries in their statements. PW.1  and  PW.4  are  two  independent
witnesses who have also proved the incident and role of  the  accused.   The
mere fact that, there are certain inconsistencies with regard to the  manner
of causing injuries to Samsuddin  and  Abdul  Rahman  by  the  witnesses  as
deposed in the court and  as  noted  in  the  statement  under  Section  161
Cr.P.C., can in no manner shake the entire evidence or  make  the  statement
of witnesses unreliable.
21.   There are two reasons for not accepting the above arguments;  firstly,
before the Police also the role of accused was mentioned  by  eye-witnesses.
In their statements under Section 161 Cr.P C and before the Court also  eye-
witnesses proved the role of  the  accused  and  presence  of  the  accused.
Hence, the eye-witness account of  witnesses  proves  the  presence  of  the
accused. They have been rightly convicted under Section  302  read  with  49
IPC.
22.   Secondly, there  is  clear  evidence  of  eye-witnesses  that  accused
persons did not allow the injured to come out from  their  house  for  about
three hours. In spite of the request being  made  by  neighbours  and  other
persons present on the spot, accused have almost seized the  house  and  did
not permit injured Afazuddin, Abdul Rahman and Samsuddin to come out  or  to
go for treatment. Finding to this effect has been  recorded  both  by  trial
court and High Court. Each person being a member  of  unlawful  assembly  is
guilty of offence being committed in prosecution of common object, has  been
held both by trial court and High  Court.   This  Court  in  Chandrappa  and
Others versus State of Karnataka, (2008) 11 SCC 328 has laid  down  that  it
is unreasonable to expect from a witness to give a  picture  perfect  report
of the incident and minor  discrepancies  in  their  statement  have  to  be
ignored. Para 17 and 18 of the judgment is extracted as below:-

“17. It has been contended by the learned Counsel for  the  appellants  that
the discrepancies between the statements of the eyewitnesses inter se  would
go to show that they had not seen the incident and no  reliance  could  thus
be placed on their testimony. It has been pointed out that their  statements
were discrepant as to the actual manner of assault and as  to  the  injuries
caused by each of the accused to  the  deceased  and  to  PW3,  the  injured
eyewitness. We are  of  the  opinion  that  in  such  matters  it  would  be
unreasonable to expect a witness to give a picture  perfect  report  of  the
injuries caused by  each  accused  to  the  deceased  or  the  injured  more
particularly where it has been proved on record that the injuries  had  been
caused by several accused armed with different kinds of weapons.

18. We also find that with the passage of time the memory of  an  eyewitness
tends to dim and it is perhaps difficult for  a  witness  to  recall  events
with precision. We have gone through the record and find that  the  evidence
had been recorded more than five years after the incident and if the  memory
had partly failed the eye witnesses and if they had not been  able  to  give
an exact description  of  the  injuries,  it  would  not  detract  from  the
substratum of their evidence. It is however very significant that  PW  2  is
the sister of the four appellants, the deceased and PW 3 Devendrappa and  in
the dispute between the brothers  she  had  continued  to  reside  with  her
father  Navilapa  who  was  residing  with  the  appellants,  but  she   has
nevertheless still supported the prosecution. We are of the opinion that  in
normal  circumstances  she  would  not  have  given  evidence  against   the
appellants but she has  come  forth  as  an  eyewitness  and  supported  the
prosecution in all material particulars.”


23.   It is also relevant to notice that accused  party  has  also  filed  a
cross-case in  which  Samsuddin  and  his  sons  were  charge-sheeted  under
Section 325 IPC which resulted in acquittal by the trial court  by  judgment
and order dated 08.10.2002. The  accused  were  found  aggressor  and  after
accused being found present and having caused  injuries  which  resulted  in
death of Abdul Rahman both the Courts below did  not  commit  any  error  in
convicting the accused under Section 302 read with 149 IPC.
24.   We have gone through the  oral  evidence  recorded  before  the  trial
court. A translated copy of such statement in English is being available  on
the record of the High court.  We are of the  view  that  finding  of  guilt
recorded by trial court is based on correct appreciation of evidence.  Minor
contradictions and inconsistencies as pointed out  by  the  learned  counsel
for the appellants rightly have been ignored by the courts below.
25.   The High Court in para 10 of its judgment has stated:-
“10.In  this  case,  we  find  from  the  evidence  on   record   that   the
intention/object of the unlawful assembly  was  to  assault  and  teach  the
victims a lesson and for that purpose they came armed with  weapons  in  the
early hours of the day and they also did not remain satisfied by  assaulting
the accused persons and causing injuries on them. Despite of all  pleas  for
mercy, they did not allow the injured  persons  to  be  taken  to  hospital,
detained them in the house for long three hours and as  a  consequent,  they
were deprived of their medical treatment and when they  were  taken  to  the
hospital, it was too late for Abdul Rahman, who succumbed  to  his  injuries
at the hospital. Hence, the common object and the intention of  the  accused
persons is apparent. ”

26.   We do not find any merit in the appeal. The appeal stands dismissed.

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


                                                         ..................J
 [ASHOK BHUSHAN]
New Delhi
April 21, 2017.

In absence of a concluded contract between the parties having been established by the Respondent, the claim under Section 73 of the Act was not maintainable. The impugned orders are, therefore, held to be unsustainable and are set aside.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                     CIVIL APPEAL NOs. 5448-5449 OF 2017
              (Arising out of S.L.P.(C)Nos.34084-34085 of 2015)


M/s. Vedanta Limited
(Formerly known as Sesa Sterlite Limited
and successor in interest of
erstwhile Sterlite Industries (India) Ltd.)        ..........APPELLANT(s)


                                   Versus

M/s. Emirates Trading Agency LLC                   ......RESPONDENT(s)




                                  JUDGMENT


NAVIN SINHA, J.


      Leave granted.

2.    The Respondent's Suit for breach of contract and damages  was  decreed
on 16.04.2013 by the Principal District Court, Thoothukudi in Original  Suit
No. 73 of 2009 for a sum of Rs.5,25,55,460/- with interest  @  8%  from  the
date of the plaint till realisation.  First  Appeal  by  the  Appellant  was
dismissed by the  High  Court  on  04.02.2014.  In  Special  Leave  Petition
(Civil) Nos.12687–12688 of 2014 preferred  against  the  same,  liberty  was
granted on 12.5.2014 to approach the High Court in the review  jurisdiction,
on the issue whether the agreement  dated  26.10.2007  between  the  parties
constituted a concluded contract  or  matters  rested  at  the  stage  of  a
proposal and a  counter  proposal  only.  Liberty  was  further  granted  to
approach this Court again, if aggrieved. Review application No. 160 of  2014
was dismissed by the High Court on 09.07.2015. Thus, the present appeal.

3.     Sri  C.A.  Sundaram,  learned  Senior  Counsel  appearing   for   the
Appellant, submitted  that  the  agreement  dated  26.10.2007  was  a  draft
proposal from the Respondent regarding supply  of  phosphoric  acid  by  the
Appellant in a specified duration. The Appellant made a counter proposal  to
the Respondent; both with  regard  to  the  quantity  of  supplies  and  the
duration of supply.  No concluded contract had arisen  between  the  parties
in absence of any final agreement having been executed. The draft  agreement
was never signed, stamped and returned by the  Appellant,  in  confirmation,
as asked for by the Respondent. The defence was taken  specifically  in  the
written statement. The Trial Court and the First  Appellate  Court,  without
proper appreciation  of  the  draft  agreement,  arrived  at  a  presumptive
conclusion based on the exchange of correspondence preceding the  same  that
it reflected a concluded contract between the parties.

4.    This Court  on  12.05.2014,  after  perusal  of  the  agreement  dated
26.10.2007,  having  been  satisfied  with  regard   to   lack   of   proper
consideration of the issue, granted liberty to the Appellant for  preferring
a review application before the  High  Court.  In  the  review  application,
objections  were  specifically  raised  that  the  draft   agreement   dated
26.10.2007 did not  constitute  a  concluded  contract,  but  was  merely  a
communication of a proposal and a counter proposal. It was also  urged  that
alterations had been  made  by  the  Appellant;  both  with  regard  to  the
quantity  and  period  of  supply.  There  was  no  material  on  record  to
demonstrate that any final agreement was  arrived  at  between  the  parties
thereafter. In absence of a valid  acceptance,  no  concluded  contract  had
come into being.

5.    Unfortunately, the High Court  relying  on  its  earlier  order  dated
04.10.2014 that the correspondence preceding the agreement dated  26.10.2007
reflected that the latter was a concluded  contract,  dismissed  the  review
petition without examining the corrections made in the draft  proposal  with
regard to the quantity of supply and period of supply,  the  effect  on  the
same, coupled with the Appellant not having  signed,  stamped  and  returned
the same to the Respondent so as to evince a concluded contract between  the
parties.

  6.    Sri  Vijay  Hansaria,  learned  Senior  Counsel  appearing  for  the
Respondent, submitted that three Courts having returned concurrent  findings
from the exchange of correspondence between the parties that  the  agreement
dated 26.10.2007 constituted  a  concluded  contract,  interference  is  not
called for.  It was on the assurance of the Appellant  to  deliver  supplies
of phosphoric acid, coupled with its promised back up  support  in  writing,
that the  Respondent  had  bid  in  response  to  the  international  tender
published  by  Bangladesh  Chemical  Industries   Corporation   (hereinafter
referred to as 'the BCIC').

7.    The breach of promise by the Appellant to make the  promised  supplies
had resulted in BCIC forfeiting the performance guarantee of the  Respondent
in addition to other  pecuniary  liabilities  imposed.  The  Suit  was  then
instituted  by  the  Respondent  claiming  damages  with  interest.   In   a
commercial contract, the course of conduct of the parties, the  exchange  of
correspondences,  are  all  important  considerations  for  the   conclusion
whether there existed a concluded contract or not. Isolated  examination  of
the agreement dated 26.10.2007 shall, therefore, not be  appropriate  so  as
to warrant interference with the concurrent findings.

8.    The  respective  submissions  on  behalf  of  the  parties  have  been
considered by us. Briefly stated, the BCIC floated an  international  tender
for supply of phosphoric acid. The Respondent  submitted  its  bid  and  was
awarded an order for supply of  30,000  MT.   The  Appellant  had  signed  a
backup support agreement with  the  Respondent  for  supplies  in  case  the
tender was awarded to the latter, and which was furnished by the  Respondent
to  the  BCIC  in  support  of  its  capacity  to  deliver   supplies.   The
correspondence between the Appellant and the Respondent  culminated  in  the
latter forwarding a draft agreement dated 26.10.2007, to the  Appellant  for
Sale/Purchase contract for 3 x 10,000 MT phosphoric acid for supply  to  the
BCIC during November and December, 2007. The covering  letter,  appended  to
the draft agreement, required the Appellant to sign, stamp  and  return  the
same to the Respondent in confirmation. The Appellant, in response,  made  a
counter proposal for supply of 3 x 9500 MT  (max)  and  between  the  period
January to March, 2008 by incorporating necessary  corrections  in  hand  in
the draft agreement.  Resultantly, while  there  was  a  proposal  from  the
Respondent, the Appellant made a counter proposal both with  regard  to  the
quantity and the period of supply.  There is no material or evidence  placed
by the Respondent that the draft  agreement  ever  assumed  the  form  of  a
concluded contract by a meeting of minds both with regard  to  the  quantity
of supplies and the duration for the  same,  much  less  was  the  agreement
signed,  stamped  and  returned  by  the  Appellant  to  the  Respondent  in
confirmation.

9.    The contract between the Respondent and the Appellant was  independent
of the contract between the Respondent and the BCIC. The Appellant had  only
offered a backup support to supply phosphoric  acid  to  the  Respondent  in
case the contract was awarded to the latter. In the written  statement,  the
Appellant had taken a specific defence regarding absence  of  any  concluded
contract between it and the Respondent.  The Trial  Court  as  well  as  the
First Appellate Court did not specifically deal with the issue of the  draft
agreement, the corrections in the same, existence of a proposal and  counter
proposal with regard to quantity and time period for supplies,  the  absence
of any executed contract by virtue of the Appellant having  signed,  stamped
and returned  the  agreement  to  the  Respondent,  in  confirmation.  On  a
presumptive reasoning, based on the  exchange  of  correspondence  preceding
the draft agreement, the First Appellate Court affirmed the finding  in  the
Suit of a concluded contract between the parties.

10.   The Appellant challenged  the  First  Appellate  Court’s  order  dated
04.10.2014 earlier in a special leave petition. On  12.05.2014,  this  Court
considering the plea for absence of a concluded contract and  after  perusal
of the draft agreement dated 26.10.2007  containing  corrections,  in  hand,
had observed "that these aspects are not  specifically  dealt  with  by  the
High Court. In this view of the matter, it would  be  more  appropriate  for
the petitioner to approach the High Court  by  filing  a  review  petition".
Observing that the High Court shall deal with the aspect on merits,  liberty
was also granted to challenge  any  fresh  order  along  with  the  impugned
orders, if aggrieved.

11.   In the review petition, a specific  plea  was  taken  that  the  draft
agreement dated 26.10.2007, Exhibit 8-A,  did  not  constitute  a  concluded
contract in view of the counter proposal made by the  Appellant,  both  with
regard to the quantity of supply and the period for the  same.  Reliance  on
the correspondence preceding the same  was  not  sufficient  in  absence  of
acceptance by the Appellant of the proposal made by the  Respondent  coupled
with signing, stamping and returning of the  agreement  in  confirmation  of
the same.

12.   The High Court, despite noticing the specific plea  of  the  Appellant
with regard to the absence of a concluded contract between  the  parties  in
view of a counter proposal, much less that the agreement was  never  signed,
stamped and returned, reiterated  the  earlier  observations  of  the  First
Appellate Court of  a  concluded  contract  between  the  parties  based  on
exchange of correspondence preceding the draft agreement, and  also  on  the
premise that  the  Respondent  had  submitted  its  offer  to  BCIC  on  the
assurance of the Appellant for backup support if the  contract  was  awarded
to the former. The High Court declined to delve further into  the  agreement
dated 26.10.2017, holding it to be impermissible in the review  jurisdiction
and concluding that the grounds urged were  superficial  in  nature  without
any material proof, designed to avoid  payment,  and  dismissed  the  review
application.  The High Court failed to notice that as recent as  28.01.2008,
the Respondent was still awaiting confirmation  of  its  proposal  from  the
Appellant, and soon thereafter the performance guarantee was invoked by  the
BCIC against the Respondent on 13.04.2008.

13.   Section 7 of the Indian Contract Act, 1872  (hereinafter  referred  to
as 'the Act') provides that in order to convert a proposal into a  contract,
the acceptance  must  be  absolute  and  unqualified.  The  existence  of  a
concluded contract is a sine qua non in a claim for  compensation  for  loss
and damages under Section  73  of  the  Act  arising  out  of  a  breach  of
contract. If instead of acceptance of a  proposal,  a  counter  proposal  is
made, no concluded contract comes into existence.


14.   U.P.  Rajkiya Nirman Nigam Ltd. v. Indure (P) Ltd., (1996) 2 SCC  667,
also related to a proposal and counter proposal. Holding that  no  concluded
contract had come into existence, the Apex Court observed as follows :-
 "9...As seen, the material alterations in the  contract  make  a  world  of
difference to draw an inference of concluded contract...."


15.   The fulcrum of the entire controversy is  the  draft  agreement  dated
26.10.2007 marked  Exhibit  8-A,  for  supply  of  phosphoric  acid  by  the
Appellant to the Respondent.  The proposal  of  the  Respondent,  led  to  a
counter proposal by the appellant.  There was no acceptance of the  proposal
by the Appellant giving rise to a  concluded  contract.   The  quantity  and
duration of supply, therefore, remained in the realm of uncertainty and  was
never agreed upon so as to give rise to a concluded contract.

16.   In absence of a concluded contract between  the  parties  having  been
established by the Respondent, the claim under Section 73  of  the  Act  was
not  maintainable.  The  impugned  orders  are,  therefore,   held   to   be
unsustainable and are set aside.

17.   The appeals are accordingly allowed.

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



                                                           ……….………………………..J.
                                                               (Navin Sinha)
New Delhi,
April 21, 2017