recovery of the silver ornaments = The ornaments had no special marks of identification. PW5 materially improved upon her version during the course of the examination. On this state of the evidence, the recovery of the silver ornaments (which was an important link in the chain of circumstances relied upon by the Additional Sessions Judge) has been correctly disbelieved by the High Court.; last seen theory - The mere circumstance that the Appellant was last seen with the deceased is an unsafe hypothesis to found a conviction on a charge of murder in this case. The lapse of time between the point when the Appellant was last seen with the deceased and the time of death is not minimal. The time of death was estimated to be between two to four weeks prior to the recovery of the body. We must also place in balance the testimony of PW4 that when he enquired regarding whereabouts of his mother, the Appellant informed him that she had stayed back at the house of her sister. This, coupled with the fact that the Appellant had absconded after the date of the incident is a pointer to a strong suspicion that the Appellant was responsible for the death of Shantabai. = However, a strong suspicion in itself is not sufficient to lead to the conclusion that the guilt of the Appellant stands established beyond reasonable doubt. There are material contradictions in the case of the prosecution. These have been noticed in the earlier part of its judgment and are sufficient in our view to entitle the Appellant to the benefit of doubt. The prosecution failed to establish a complete chain of circumstances and to exclude every hypothesis other than the guilt of the Appellant. We accordingly allow the appeal and set aside the conviction of the Appellant under Section 302 of the IPC.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 630 OF 2009
GANPAT SINGH .....APPELLANT

Versus
THE STATE OF MADHYA PRADESH .....RESPONDENT
J U D G M E N T
Dr D Y CHANDRACHUD, J
1 This appeal arises from a judgment of a Division Bench of the Madhya
Pradesh High Court in its bench at Indore, rendered on 22 March 2007. The High
Court affirmed the conviction of the Appellant under Section 302 of the Indian
Penal Code (“IPC”).
2
2 Shantabai was a widow. Her husband Mangilal had died about a decade
earlier. She resided together with her son Rakesh, who was a minor. The
prosecution alleges that the Appellant would visit her frequently.
3 The case of the prosecution is that on 8 July 1996, the police station at
Doraha received information of a dead body being found in a dry well. A ‘missing
report’ had been lodged by Rakesh. Rakesh had alleged that the Appellant used
to frequently visit the house where Shantabai resided and had started to live
there. Rakesh informed the police that a few days earlier, the Appellant had come
to the house and had left the next morning with his mother for Sihore soon
thereafter. On the next day, when the Appellant returned alone, Rakesh enquired
of the whereabouts of his mother. The Appellant allegedly informed him that she
had stayed back at the home of Rakesh’s maternal aunt. A First Information
Report was registered. A post-mortem was conducted on the body which had
been recovered from the dry well, which was identified to be that of Shantabai.
The body was decomposed and there was a piece of cloth loosely tied around the
neck. The period of death was estimated to be between two to four weeks prior to
the recovery of the dead body. The Appellant is stated to have absconded
immediately after the incident. He was arrested on 12 December 1997. The
appellant was tried on the charge of murder.
4 The prosecution examined fifteen eye-witnesses. Among them were
Rakesh- PW4 and Rekha-PW5, the married daughter of the deceased. PW1-
Kamlabai and PW2-Dhankunwarbai deposed that Shantabai had visited their
3
homes with a request to lend certain silver ornaments to her since she intended
to arrange the engagement of her son, PW4- Rakesh. The evidence of these two
witnesses was sought to be buttressed by a recovery of silver ornaments from the
house of the Appellant. PW3- Phool Singh was a witness for the prosecution in
support of the seizure memo. PW4- Rakesh deposed that the Appellant had
taken his mother along with him under the pretext of getting Rakesh engaged.
PW4 stated that on the next day, when the Appellant returned alone, he enquired
about the whereabouts of his mother when the Appellant informed him that she
had stayed back with her sister. PW4 stated that he made inquiries with his
maternal aunt who informed him that his mother had not visited her.
5 The Additional Sessions Judge by a judgment dated 23 June 1998 found
the Appellant guilty of an offence under Section 302 of the IPC and sentenced
him to imprisonment for life. The case rested entirely on circumstantial evidence.
The circumstances which weighed with the trial court were that : (i) the deceased
was last seen accompanying the Appellant; (ii) the deceased had taken with her
the jewellery of PW1 and PW2 which was recovered from the Appellant; and (iii)
the Appellant had no explanation of how the articles were found in his
possession.
6 In appeal, the High Court by its judgment dated 22 March 2007,
disbelieved the case of the prosecution on the recovery of the silver ornaments
from the house of the Appellant. The High Court noticed that only three silver
ornaments had been recovered which were identified by Rekha, PW5 who was
4
the daughter of the deceased. Significantly, as the High Court noted, the
prosecution had no explanation as to why there was no identification of the silver
ornaments by PW1-Kamlabai and PW2- Dhankunwarbai who were alleged to
have lent their ornaments to the deceased. The ornaments had no special marks
of identification and were commonly available in the market. The High Court
observed that Rekha, PW5 had no occasion to observe the ornaments since her
mother had only visited briefly. PW5, in the course of her deposition, stated for
the first time that one of the ornaments belonged to her but then changed her
statement and stated that it belonged to her mother. The High Court noticed a
clear contradiction with her statement under Section 161 of the CrPC. The
recovery of the ornaments from the house of the Appellant has hence been
disbelieved. The High Court also noted in the course of the judgment that
Rakesh, PW4 had exaggerated what he claimed to know, in the course of his
deposition. PW4 stated that the Appellant had admitted to him that he had killed
Shantabai but no such statement was made under Section 161 of the CrPC.
7 In the above background, the High Court did not rely upon the alleged
recovery of the silver ornaments which was a material circumstance which the
Additional Sessions Judge had found to link the Appellant with the murder of
Shantabai. Nonetheless, three circumstances weighed with the High Court in
affirming the conviction of the Appellant. These are summarized in the following
extracts of the judgment of the High Court :
“Thus, to summarize the facts :-
(i) The deceased was last seen in the company of the accused.
5
(ii) The accused made false statement to the son of the deceased
Rakesh (PW-4) that her mother had gone to the maternal aunt.
(iii) That the body of the deceased was recovered at the instance of the
accused.”
8 During the course of the hearing of the appeal, it has been submitted on
behalf of the Appellant that the third circumstance noted above reveals a clear
error by the High Court since the body of the deceased was recovered on 8 July
1996 whereas the Appellant was arrested on 12 December 1997. This aspect
has not been disputed by learned Counsel appearing on behalf of the
respondent-state. Hence, there is a manifest error on the part of the High Court in
holding that the body of the deceased was recovered at the instance of the
Appellant. The Appellant was arrested several months after the recovery of the
body. Hence, the recovery of the body could not have been (and was not) at his
instance. That essentially leaves the court only with the first two circumstances
which have been relied upon by the High Court.
9 There are no eye-witnesses to the crime. In a case which rests on
circumstantial evidence, the law postulates a two-fold requirement. First, every
link in the chain of circumstances necessary to establish the guilt of the accused
must be established by the prosecution beyond reasonable doubt. Second, all
the circumstances must be consistent only with the guilt of the accused. The
principle has been consistently formulated thus :
“The normal principle in a case based on circumstantial evidence is
that the circumstances from which an inference of guilt is sought to
be drawn must be cogently and firmly established; that those
circumstances should be of a definite tendency unerringly pointing
towards the guilt of the accused; that the circumstances taken
6
cumulatively should form a chain so complete that there is no escape
from the conclusion that within all human probability the crime was
committed by the accused and they should be incapable of
explanation on any hypothesis other than that of the guilt of the
accused and inconsistent with his innocence”.1
10 Evidence that the accused was last seen in the company of the deceased
assumes significance when the lapse of time between the point when the
accused and the deceased were seen together and when the deceased is found
dead is so minimal as to exclude the possibility of a supervening event involving
the death at the hands of another. The settled formulation of law is as follows :
“The last seen theory comes into play where the time gap between
the point of time when the accused and deceased were seen last
alive and when the deceased is found dead is so small that possibility
of any person other than the accused being the author of crime
becomes impossible. It would be difficult in some cases to positively
establish that the deceased was last seen with the accused when
there is a long gap and possibility of other persons coming in
between exists. In the absence of any other positive evidence to
conclude that accused and deceased were last seen together, it
would be hazardous to come to a conclusion of guilt in those cases”.2
11 The case of the prosecution is riddled with unexplained contradictions,
PW1-Kamlabai and PW2-Dhankunwarbai were crucial to the case of the
prosecution for establishing that the deceased had visited them and that they had
lent her silver ornaments ostensibly because she intended to arrange the
1
See Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116; Ramreddy Rajeshkhanna Reddy
v. State of Andhra Pradesh, (2006) 10 SCC 172; Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC
681; Venkatesan v. State of Tamil Nadu, (2008) 8 SCC 456; Sanjay Kumar Jain v. State of Delhi, (2011) 11 SCC
733; Madhu v. State of Kerala, (2012) 2 SCC 399; Munna Kumar Upadhyaya @ Munna Upadhyaya v. State of
Andhra Pradesh, (2012) 6 SCC 174; Vivek Kalra v. State of Rajasthan, (2014) 12 SCC 439.”
2
See Bodh Raj @ Bodha v. State of Jammu and Kashmir, (2002) 8 SCC 45; Jaswant Gir v. State of Punjab
(2005) 12 SCC 438; Tipparam Prabhakar v. State of Andhra Pradesh, (2009) 13 SCC 534; Rishi Pal v. State of
Uttarakhand, (2013) 12 SCC 551; Krishnan v. State of Tamil Nadu, (2014) 12 SCC 279; Kiriti Pal v. State of
West Bengal, (2015) 11 SCC 178; State of Karnataka v. Chand Basha, (2016) 1 SCC 501; Rambraksh v. State
of Chhattisgarh, (2016) 12 SCC 251; Anjan Kumar Sharma v. State of Assam, 2017 (6) SCALE 556.”
7
engagement of her son Rakesh-PW4. Admittedly, neither PW1 nor PW2 were
called upon to identify the jewellery alleged to have been recovered from the
house of the Appellant. PW1 stated that the jewellery which she had lent weighed
more than half a kg. PW2 deposed that the ornaments which she had lent
weighed about 1.25 kgs. In the course of her cross-examination, PW1 stated that
it was true that the ornaments which she had lent were commonly worn by
women in the villages. PW2 also admitted that there were no identification marks
on the ornaments and they were of a nature that is commonly used. PW5-Rekha,
the daughter of the deceased, had (as the High Court observed) no opportunity
to observe the ornaments on the person of the deceased. The ornaments had no
special marks of identification. PW5 materially improved upon her version during
the course of the examination. On this state of the evidence, the recovery of the
silver ornaments (which was an important link in the chain of circumstances
relied upon by the Additional Sessions Judge) has been correctly disbelieved by
the High Court.
12 An important circumstance which weighed with the High Court was that the
body of the deceased was recovered at the behest of the Appellant. There is a
manifest error on the part of the High Court in arriving at this conclusion since the
record would indicate that the body of the deceased was recovered several
months before the arrest of the Appellant. The mere circumstance that the
Appellant was last seen with the deceased is an unsafe hypothesis to found a
conviction on a charge of murder in this case. The lapse of time between the
point when the Appellant was last seen with the deceased and the time of death
8
is not minimal. The time of death was estimated to be between two to four weeks
prior to the recovery of the body.
13 We must also place in balance the testimony of PW4 that when he
enquired regarding whereabouts of his mother, the Appellant informed him that
she had stayed back at the house of her sister. This, coupled with the fact that
the Appellant had absconded after the date of the incident is a pointer to a strong
suspicion that the Appellant was responsible for the death of Shantabai.
However, a strong suspicion in itself is not sufficient to lead to the conclusion that
the guilt of the Appellant stands established beyond reasonable doubt. There are
material contradictions in the case of the prosecution. These have been noticed
in the earlier part of its judgment and are sufficient in our view to entitle the
Appellant to the benefit of doubt. The prosecution failed to establish a complete
chain of circumstances and to exclude every hypothesis other than the guilt of
the Appellant.
14 We accordingly allow the appeal and set aside the conviction of the
Appellant under Section 302 of the IPC. The appellant is on bail. His bail bonds
are discharged.
……........................................J
[N V RAMANA]
................................................J
[Dr D Y CHANDRACHUD]
New Delhi;
September 19, 2017

Sec.311 Cr.P.C. - Application for re- recording the evidence as earlier are given under police influence - bad - applications before the Sessions Judge under Section 311 of Cr.P.C. for re-recording their statements on the ground that the previous statements were made under the influence of the police. = During the police investigation and in their evidence, they have supported the prosecution story. The Sessions Judge has recorded a finding that they were not under any pressure while recording their evidence. After a passage of 14 months, they have filed the application for their re-examination on the ground that the statements made by them earlier were under pressure. They have not assigned any reasons for the delay in making application. It is obvious that they had been won over. We do not find any reasons to allow such an application. The Sessions Judge, therefore, was justified in rejecting the application. In our view, High Court was not right in setting aside the said order.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURSIDCITON
CRIMINAL APPEAL NO. 499 OF 2014
RATANLAL … APPELLANT
VERSUS
PRAHLAD JAT & ORS. …RESPONDENTS
J U D G M E N T
S.ABDUL NAZEER, J.
1 This appeal is directed against the order dated 22.5.2012 in
S.B. Criminal Miscellaneous Petition No.1679 of 2012, whereby
the High Court of Rajasthan (Jaipur Bench) has allowed the
criminal miscellaneous petition filed under Section 482 of Code of
Criminal Procedure, 1908 and has set aside the order dated
2
24.04.2012 passed by Additional Sessions Judge (Fast – Track),
Sikar.
2. A charge sheet No.22 of 2009 dated 20.3.2009 was
presented under Sections 302, 201, 342, 120-B IPC against
respondent Nos.1 and 2 and three others. Charges have been
framed under the aforesaid Sections against the accused persons.
Statements of 28 witnesses have been recorded in the trial. The
statements of Sawarmal and Chandri have been recorded as PW4
and PW5 respectively. Thereafter, both moved applications before
the Sessions Judge under Section 311 of Cr.P.C. for re-recording
their statements on the ground that the previous statements
were made under the influence of the police. In the applications,
the witnesses have stated that respondent Nos.1 and 2 had no
role in the incident.
3. The Sessions Judge by the order dated 24.4.2012, dismissed
the applications observing that the 28 witnesses had already
been examined in the case so far. The witnesses were also
cross-examined at length and it cannot be said that they were in
any kind of pressure and that the applications were filed with a
3
view to favour the accused persons. Prahlad Jat and Mahavir, the
two accused persons, moved the petition before the High Court
for quashing the said order and the High Court has allowed the
applications of PW4 and PW5.
4. Learned counsel for the appellant, urged that PW4 and PW5
were examined in the Court on different dates in the months of
November and December 2010 and in March 2011. Out of total
35 witnesses, 28 witnesses have already been examined and they
were cross-examined at length. PWs 4 and 5 filed applications
before the trial court for further examination on 27.2.2012 and
26.3.2012 respectively. During police investigation and
examination conducted by the prosecution, they had supported
the prosecution story. The applications have been filed with an
intention to provide assistance to the accused persons which
cannot be permitted in law. The applications are highly belated
and no reason, whatsoever, has been assigned for the delay.
Therefore, the High Court was not justified in setting aside the
well-reasoned order of the Sessions Judge.
4
5. On the other hand, learned counsel appearing for
respondent No.4 submits that the appellant has no locus standi to
file this appeal. It is contended that the Sessions Judge has
ample power to examine or re-examine any witness under
Section 311 of the Cr.P.C. to bring on record the best possible
evidence to meet the ends of justice. Keeping this principle in
mind the High Court has allowed the petition. Learned counsel
appearing for the third respondent has supported the case of the
appellant. We have carefully considered the arguments of the
learned counsel made at the Bar.
6. The appellant is the paternal brother of the deceased and is
one of the prosecution witnesses. The evidence of PW4 and PW5
was recorded on different dates in the months of November and
December 2010 and in March 2011. Both of them had supported
the case of the prosecution. After passage of about 14 months,
PW4 and PW5 filed applications under Section 311 of the Cr.P.C.,
inter alia, praying for their re-examination as witnesses for the
reason that the statements recorded earlier were made on the
5
instructions of the police. The Sessions Judge dismissed the
application by holding as under:
“The charges have already been framed
under sections 302, 201, 342, 120 B IPC
against the accused persons. Statements of
28 witnesses have already been recorded in
the trial. The statements of applicant namely
Sawarmal has already been recorded as
witness PW4 and the statements of applicant
namely Chandri have also already been
recorded as witness PW5. Thereafter, the
said applications have been filed. Said
witnesses have already undergone a lengthy
cross examination. During the police
investigation and examination conducted by
the prosecution, wherein they have
supported prosecution story, it cannot be said
that at such time, the witnesses were under
any pressure. In such circumstances, it is
not justified to make the Court as weapon to
adjudicate in own favour and the above both
applications are without any merit and
presented with the intention to provide
assistance to the accused persons, due to
which, the same are not liable to be
admitted. Resultant, the above presented
both applications dated 27.02.2012 and
26.03.2012 under section 311 CrPC on behalf
of the applicants are not liable to be
admitted, therefore, the same are
dismissed”.
This order of the Sessions Judge has been set aside by the High
Court.
6
7. Having regard to the contentions urged, the first question
for consideration is whether the appellant has locus standi to
challenge the order of the High Court.
8. In Black’s Law Dictionary, the meaning assigned to the term
‘locus standi’ is ‘the right to bring an action or to be heard in a
given forum’. One of the meanings assigned to the term ‘locus
standi’ in Law Lexicon of Sri P.Ramanatha Aiyar, is ‘a right of
appearance in a Court of justice’. The traditional view of locus
standi has been that the person who is aggrieved or affected has
the standing before the court, that is to say, he only has a right
to move the court for seeking justice. The orthodox rule of
interpretation regarding the locus standi of a person to reach the
Court has undergone a sea change with the development of
constitutional law in India and the Constitutional Courts have
been adopting a liberal approach in dealing with the cases or
dislodging the claim of a litigant merely on hyper-technical
grounds. It is now well-settled that if the person is found to be
not merely a stranger to the case, he cannot be non-suited on the
ground of his not having locus standi.
7
9. However, criminal trial is conducted largely by following the
procedure laid down in Cr.P.C. Locus standi of the complaint is a
concept foreign to criminal jurisprudence. Anyone can set the
criminal law in motion except where the statute enacting or
creating an offence indicates to the contrary. This general
principle is founded on a policy that an offence, that is an act or
omission made punishable by any law for the time being in force,
is not merely an offence committed in relation to the person who
suffers harm but is also an offence against the society.
Therefore, in respect of such offences which are treated against
the society, it becomes the duty of the State to punish the
offender. In A.R. Antulay v. Ramdas Sriniwas Nayak & Anr.
(1984) 2 SCC 500, a Constitution Bench of this Court has
considered this aspect as under:-
“In other words, the principle that anyone
can set or put the criminal law in motion
remains intact unless contra-indicated by a
statutory provision. This general principle of
nearly universal application is founded on a
policy that an offence i.e. an act or omission
made punishable by any law for the time
being in force [See Section 2(n) CrPC] is not
merely an offence committed in relation to
the person who suffers harm but is also an
8
offence against society. The society for its
orderly and peaceful development is
interested in the punishment of the offender.
Therefore, prosecution for serious offences is
undertaken in the name of the State
representing the people which would exclude
any element of private vendetta or
vengeance. If such is the public policy
underlying penal statutes, who brings an act
or omission made punishable by law to the
notice of the authority competent to deal
with it, is immaterial and irrelevant unless
the statute indicates to the contrary.
Punishment of the offender in the interest of
the society being one of the objects behind
penal statutes enacted for larger good of the
society, right to initiate proceedings cannot
be whittled down, circumscribed or fettered
by putting it into a strait-jacket formula of
locus standi unknown to criminal
jurisprudence, save and except specific
statutory exception”.
10. In Manohar Lal v. Vinesh Anand & Ors. (2001) 5 SCC
407, this Court has held that doctrine of locus standi is totally
foreign to criminal jurisprudence. To punish an offender in the
event of commission of an offence is to subserve a social need.
Society cannot afford to have a criminal escape his liability since
that would bring about a state of social pollution which is neither
9
desired nor warranted and this is irrespective of the concept of
locus.
11. In Arunachalam v. P.S.R. SADHANANTHAM & ANR.
(1979) 2 SCC 297, this Court has considered the competence of a
private party, as distinguished from the State to invoke the
jurisdiction of this Court under Article 136 of the Constitution
against a judgment of acquittal by the High Court. It was held
that appellate power vested in the Supreme Court under Article
136 of the Constitution is not to be confused with ordinary
appellate power exercised by appellate courts and appellate
tribunals under specific statutes. Article 136 of the Constitution
vests the Supreme Court with a plentitude of plenary, appellate
power over all Courts and Tribunals in India. The power is plenary
in the sense that there are no words in Article 136 itself qualifying
that power. But, the very nature of the power has led the Court
to set limits to itself within which it has to exercise such power.
The power is vested in the Supreme Court but the right to invoke
the Court’s jurisdiction is vested in no one. The exercise of the
power of the Supreme Court is not circumscribed by any
10
limitation as to who may invoke it. The Court found that the
judgment of acquittal by the High Court has led to serious
miscarriage of justice. Therefore, it was held that Supreme Court
cannot refrain from doing its duty and abstain from interfering on
the ground that a private party and not the State has invoked the
Court’s jurisdiction.
12. The accused in Arunachalam (supra) had filed a writ
petition under Article 32 contending that the Supreme Court has
no power to grant special leave to the brother of the deceased.
This writ petition was decided by a Constitution Bench in P.S.R
Sadhanantham v. Arunachalam & Anr. (1980) 3 SCC 141.
Rejecting the contention of the petitioner, this Court held as
under:-
“In express terms, Article 136 does not
confer a right of appeal on a party as such
but it confers a wide discretionary power on
the Supreme Court to interfere in suitable
cases. It is residuary power and is
extraordinary in its amplitude. But the
Constitution makers intended in the very
terms of Article 136 that it shall be exercised
by the highest judges of the land with
scrupulous adherence to judicial principles
well established by precedents in our
11
jurisprudence. Article 136 has a composite
structure of power-cum-procedure inasmuch
as there is an in-built prescription of exercise
of judicial discretion and mode of hearing. It
is fair to assume that while considering the
petition under Article 136 the court will pay
attention to the question of liberty, the
person who seeks such leave from the court,
his motive and his locus standi and the
weighty factors which persuade the court to
grant special leave. When this conspectus of
processual circumstances and criteria play
upon the jurisdiction of the court under
Article 136, it is reasonable to conclude that
the desideratum of fair procedure implied in
Article 21 is adequately answered. Though
parties promiscuously ‘provoke’ this
jurisdiction, the court parsimoniously invokes
the power. Moreover, the court may not,
save in special situations, grant leave to one
who is not eo nomine a party on the record.
Thus, procedural limitations exist and are
governed by well-worn rules of guidance”.
13. In Ramakant Rai v. Madan Rai & Ors. (2003) 12 SCC
395, and Esher Singh v. State of A.P. (2004) 11 SCC 585, it
was held that the Supreme Court can entertain appeals against
the judgment of acquittal by the High Court at the instance of
interested parties also. The circumstance that Criminal Procedure
Code does not provide for an appeal to the High Court against an
order of acquittal by a subordinate court at the instance of a
12
private party has no relevance to the question of power of
Supreme Court under Article 136.
14. In Amanullah and Anr. v. State of Bihar and Ors. (2016)
6 SCC 699, this Court has held that the aggrieved party cannot
be left to the mercy of the State to file an appeal. It was held as
under :-
“19…… Now turning our attention towards the
criminal trial, which is conducted, largely, by
following the procedure laid down in CrPC.
Since, offence is considered to be a wrong
committed against the society, the
prosecution against the accused person is
launched by the State. It is the duty of the
State to get the culprit booked for the
offence committed by him. The focal point,
here, is that if the State fails in this regard
and the party having bona fide connection
with the cause of action, who is aggrieved by
the order of the court cannot be left at the
mercy of the State and without any option to
approach the appellate court for seeking
justice”.
15. It is thus clear that Article 136 does not confer a right to
appeal on any party but it confers a discretionary power on the
Supreme Court to interfere in suitable cases. The exercise of the
power of the court is not circumscribed by any limitation as to
13
who may invoke it. It does not confer a right to appeal, it confers
only a right to apply for special leave to appeal. Therefore, there
was no bar for the appellant to apply for special leave to appeal
as he is an aggrieved person. This Court in exercise of its
discretion granted permission to the appellant to file the special
leave petition on 03.08.2012 and leave was granted on
24.02.2014.
16. That brings us to the next question as to whether the High
Court was justified in setting aside the order of the Sessions
Judge and allowing the application filed by PWs 4 and 5 for their
re-examination. For ready reference Section 311 of the Cr.P.C. is
as under:
“311. Power to summon material
witness, or examine person present.-
Any Court may, at any stage of any inquiry,
trial or other proceeding under this Code,
summon any person as a witness, or
examine any person in attendance, though
not summoned as a witness, or recall and
re-examine any person already examined;
and the Court shall summon and examine or
recall and re-examine any such person if his
evidence appears to it to be essential to the
just decision of the case”.
14
17. In order to enable the court to find out the truth and render
a just decision, the salutary provisions of Section 311 are enacted
whereunder any court by exercising its discretionary authority at
any stage of inquiry, trial or other proceeding can summon any
person as witness or examine any person in attendance though
not summoned as a witness or recall or re-examine any person
already examined who are expected to be able to throw light
upon the matter in dispute. The object of the provision as a
whole is to do justice not only from the point of view of the
accused and the prosecution but also from the point of view of an
orderly society. This power is to be exercised only for strong and
valid reasons and it should be exercised with caution and
circumspection. Recall is not a matter of course and the
discretion given to the court has to be exercised judicially to
prevent failure of justice. Therefore, the reasons for exercising
this power should be spelt out in the order.
18. In Vijay Kumar v. State of Uttar Pradesh and Anr.,
(2011) 8 SCC 136, this Court while explaining scope and ambit of
Section 311 has held as under:-
15
“Though Section 311 confers vast discretion
upon the court and is expressed in the widest
possible terms, the discretionary power
under the said section can be invoked only
for the ends of justice. Discretionary power
should be exercised consistently with the
provisions of CrPC and the principles of
criminal law. The discretionary power
conferred under Section 311 has to be
exercised judicially for reasons stated by the
court and not arbitrarily or capriciously”.
19. In Zahira Habibullah Sheikh (5) and Anr. v. State of
Gujarat and Others, (2006) 3 SCC 374, this Court has
considered the concept underlining under Section 311 as under:-
“The object underlying Section 311 of the
Code is that there may not be failure of
justice on account of mistake of either party
in bringing the valuable evidence on record
or leaving ambiguity in the statements of the
witnesses examined from either side.
The determinative factor is whether it is
essential to the just decision of the case. The
section is not limited only for the benefit of
the accused, and it will not be an improper
exercise of the powers of the court to
summon a witness under the section merely
because the evidence supports the case of
the prosecution and not that of the accused.
The section is a general section which applies
to all proceedings, enquiries and trials under
the Code and empowers the Magistrate to
16
issue summons to any witness at any stage
of such proceedings, trial or enquiry. In
Section 311 the significant expression that
occurs is “at any stage of any inquiry or trial
or other proceeding under this Code”. It is,
however, to be borne in mind that whereas
the section confers a very wide power on the
court on summoning witnesses, the
discretion conferred is to be exercised
judiciously, as the wider the power the
greater is the necessity for application of
judicial mind”.
20. In State (NCT of Delhi) v. Shiv Kumar Yadav & Anr.,
(2016) 2 SCC 402, it was held thus:-
“…………… Certainly, recall could be permitted
if essential for the just decision, but not on
such consideration as has been adopted in
the present case. Mere observation that
recall was necessary “for ensuring fair trial”
is not enough unless there are tangible
reasons to show how the fair trial suffered
without recall. Recall is not a matter of
course and the discretion given to the court
has to be exercised judiciously to prevent
failure of justice and not arbitrarily. While
the party is even permitted to correct its
bona fide error and may be entitled to further
opportunity even when such opportunity may
be sought without any fault on the part of the
opposite party, plea for recall for advancing
justice has to be bona fide and has to be
balanced carefully with the other relevant
considerations including uncalled for hardship
to the witnesses and uncalled for delay in the
17
trial. Having regard to these considerations,
there is no ground to justify the recall of
witnesses already examined”.
21. The delay in filing the application is one of the important
factors which has to explained in the application. In Umar
Mohammad & Ors. v. State of Rajasthan, (2007) 14 SCC 711,
this Court has held as under:-
“Before parting, however, we may notice that
a contention has been raised by the learned
counsel for the appellant that PW 1 who was
examined in Court on 5-7-1994 purported to
have filed an application on 1-5-1995 stating
that five accused persons named therein
were innocent. An application filed by him
purported to be under Section 311 of the
Code of Criminal Procedure was rejected by
the learned trial Judge by order dated
13-5-1995. A revision petition was filed
thereagainst and the High Court also rejected
the said contention. It is not a case where
stricto sensu the provisions of Section 311 of
the Code of Criminal Procedure could have
been invoked. The very fact that such an
application was got filed by PW 1 nine
months after his deposition is itself pointer to
the fact that he had been won over. It is
absurd to contend that he, after a period of
four years and that too after his
examination-in-chief and cross-examination
was complete, would file an application on his
18
own will and volition. The said application
was, therefore, rightly dismissed”.
22. Coming to the facts of the present case, PWs 4 and 5 were
examined between 29.11.2010 and 11.3.2011. They were
cross-examined at length during the said period. During the
police investigation and in their evidence, they have supported
the prosecution story. The Sessions Judge has recorded a finding
that they were not under any pressure while recording their
evidence. After a passage of 14 months, they have filed the
application for their re-examination on the ground that the
statements made by them earlier were under pressure. They
have not assigned any reasons for the delay in making
application. It is obvious that they had been won over. We do not
find any reasons to allow such an application. The Sessions
Judge, therefore, was justified in rejecting the application. In our
view, High Court was not right in setting aside the said order.
23. In the result, the appeal succeeds and it is accordingly
allowed. The order of the High Court in S.B. Criminal
19
Miscellaneous Petition No.1679 of 2012, dated 22.5.2012 is
hereby set aside. All pending applications also stand disposed of.
24. We find from the records that after the order of the High
Court, PWs 4 and 5 were re-examined before the Trial Court.
The Trial Court is directed to proceed with the matter without
taking into consideration the evidence of PWs 4 and 5 recorded
after the order of the High Court.
………………………………J.
(J. CHELAMESWAR)
………………………………J.
(S. ABDUL NAZEER)
New Delhi;
September 15, 2017.

corporate law - Sec.40 Haryana General sales Tax - whether the exercise of revisional power under Section 40 of the Haryana General Sales Tax Act, 1973 (hereinafter referred to as ‘the Act of 1973’) after its repeal on 1.4.2003, by the Haryana Value Added Tax, 2003 (hereinafter referred to as ‘the Act of 2003’), is sustainable. The appeals have, therefore, been heard together and are being disposed by a common order. = resort to Section 40 of the Act of 1973, after coming into force of the new Act on 01.04.2003 was unsustainable, as the repeal and saving clause in Section 61 of the Act of 2003, saved only pending proceedings under the former. Since there were no proceedings pending against the respondent under the repealed Act, on the relevant date, the proceedings thereunder could not be sustained or justified by reference to Section 4 of the Punjab General Clauses Act, 1898.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 10792-10794 OF 2011
THE STATE OF HARYANA AND OTHERS ….APPELLANT(S)
VERSUS
HINDUSTAN CONSTRUCTION
COMPANY LTD. ….RESPONDENT(S)
WITH
CIVIL APPEAL NO(s).10795 OF 2011
CIVIL APPEAL NO(s).10808 OF 2011
CIVIL APPEAL NO(s).10805 OF 2011
CIVIL APPEAL NO(s).10807 OF 2011
CIVIL APPEAL NO(s).10804 OF 2011
CIVIL APPEAL NO(s).10796 OF 2011
CIVIL APPEAL NO(s).10801-10802 OF 2011
CIVIL APPEAL NO(s).10815-10816 OF 2011
CIVIL APPEAL NO(s).10806 OF 2011
CIVIL APPEAL NO(s).10810 OF 2011
CIVIL APPEAL NO(s).10803 OF 2011
CIVIL APPEAL NO(s).10799 OF 2011
CIVIL APPEAL NO(s).10812 OF 2011
CIVIL APPEAL NO(s).10798 OF 2011
CIVIL APPEAL NO(s).10797 OF 2011
CIVIL APPEAL NO(s).10800 OF 2011
CIVIL APPEAL NO(s).10820 OF 2011
CIVIL APPEAL NO(s).10811 OF 2011
CIVIL APPEAL NO(s).10813 OF 2011
CIVIL APPEAL NO(s).10814 OF 2011
CIVIL APPEAL NO(s).10809 OF 2011
CIVIL APPEAL NO(s).10817-10818 OF 2011
CIVIL APPEAL NO(s).10824 OF 2011
1
CIVIL APPEAL NO(s).10830 OF 2011
CIVIL APPEAL NO(s).10829 OF 2011
CIVIL APPEAL NO(s).10828 OF 2011
CIVIL APPEAL NO(s).10826-10827 OF 2011
CIVIL APPEAL NO(s).10825 OF 2011
CIVIL APPEAL NO(s).10821-10823 OF 2011
CIVIL APPEAL NO(s).10831 OF 2011
CIVIL APPEAL NO(s).10837 OF 2011
CIVIL APPEAL NO(s).10833 OF 2011
CIVIL APPEAL NO(s).10832 OF 2011
CIVIL APPEAL NO(s).10834-10835 OF 2011
CIVIL APPEAL NO(s).10840-10841 OF 2011
CIVIL APPEAL NO(s).10838-10839 OF 2011
JUDGMENT
NAVIN SINHA, J.
The common question of law arising for consideration in
this batch of appeals is whether the exercise of revisional
power under Section 40 of the Haryana General Sales Tax Act,
1973 (hereinafter referred to as ‘the Act of 1973’) after its
repeal on 1.4.2003, by the Haryana Value Added Tax, 2003
(hereinafter referred to as ‘the Act of 2003’), is sustainable.
The appeals have, therefore, been heard together and are
being disposed by a common order.
2
2. The facts, for better appreciation, shall be culled out from
Civil Appeal Nos.10792-10794 of 2011. The sales tax
assessment of the respondent, for the assessment year
1998-99, was completed and refund ordered on 12.05.2000,
under the Act of 1973. Subsequently, the former Act was
repealed by the Act of 2003 on 01.04.2003. A show cause
notice was issued to the respondent on 07.06.2004 regarding
the refund ordered earlier, in exercise of suo-moto revisional
powers under Section 40 of the Act of 1973. By order dated
12.07.2004, the respondent was held liable for recovery of Rs.
65,35,632/-.
3. The order for recovery having been challenged by the
respondent before the High Court, it was held that resort to
Section 40 of the Act of 1973, after coming into force of the
new Act on 01.04.2003 was unsustainable, as the repeal and
saving clause in Section 61 of the Act of 2003, saved only
pending proceedings under the former. Since there were no
proceedings pending against the respondent under the
repealed Act, on the relevant date, the proceedings thereunder
3
could not be sustained or justified by reference to Section 4 of
the Punjab General Clauses Act, 1898.
4. Sh. Manish Paliwal, learned counsel appearing on behalf
of the State of Haryana, submitted that the refund having
been wrongly obtained, resort to suo-moto revision under
Section 40 of the Act of 1973, exercised within the limitation of
five years, was justified. The wrong benefit of refund clearly
fell within the meaning of the expression privilege, obligation
or liability acquired or incurred under the repealed Act, and
was therefore saved by Section 4 of the Punjab General
Clauses Act, 1898. Relying on Raymond Ltd. and Anr. vs.
State of Chhattisgarh & Ors., (2007) 3 SCC 79, it was
contended that the revisional power conferred on the revenue
in a fiscal legislation should not be construed as a stand-alone
provision, but as a provision intended to enable the revisional
authority to ensure that the assessment had been carried out
in accordance with law. The power vested in the revisional
authority to correct an error in assessment has a direct nexus
with the order of assessment giving finality to the order of the
4
assessing authority. There is a corresponding obligation and
responsibility on the assessee also, and when it is found that
the assessment was otherwise then in accordance with law,
the power of the revisional authority cannot be restricted in
revenue and fiscal matters.
5. Reliance was further placed on Swastik Oil Mills Ltd
vs. H.B. Munshi, Deputy Commissioner of Sales Tax,
Bombay, 1968 (2) SCR 492, and Gammon India Ltd. vs.
Special Chief Secretary and Ors., (2006) 3 SCC 354, in
support of the submission that resort to Section 40 of the Act
of 1973 was saved by reason of Section 4 of the Punjab
General Clauses Act, 1898.
6. Sh. P.H. Parekh, learned Senior Counsel appearing on
behalf of the respondent, urged that the impugned order called
for no interference. The repeal and saving clause in Section
61 of the Act of 2003 exclusively saved pending proceedings
only. The application of the Punjab General Clauses Act,
5
1898, therefore, stood excluded by the expression of a different
intention in the repealing Act. The legislature subsequently
amended Section 61 of the Act of 2003, suitably on
02.04.2010.
7. At the outset, it is appropriate to set out the unamended
and amended provisions of Section 61 of the Act of 2003 to
facilitate better appreciation of issues.
Section 61 of 2003 Act
(Before Amendment)
Section 61 of 2003 Act
(After Amendment)
(1) The Haryana General Sales Tax
Act, 1973 (20 of 1973), is hereby
repealed :
“(1) The Haryana General Sales Tax
Act, 1973 (20 of 1973), is hereby
repealed.
Provided that such repeal shall
not-
(a) affect the previous operation
of the Act so repealed or anything
duly done or suffered thereunder;
or
(b) affect any right, title,
privilege, obligation or liability
acquired, accrued or incurred
under the said Act; or
(c) affect any act done or any
action taken (including any
appointment, notification,
notice, order, rule, form
regulation, certificate) in the
6
exercise of any power conferred
by or under the said Act,
and any such act done or any
action taken in the exercise of
the powers conferred by or under
the said Act shall be deemed to
have been done or taken in the
exercise of the powers conferred
by or under the said Act as if this
Act were in force on the date on
which such act was done or
action taken; and all arrears of
tax and other amount due at the
commencement of this Act may
be recovered as if the same had
accrued under this Act.”
(2) Notwithstanding anything
contained in sub-section (1), -
(a) any application, appeal,
revision or other proceedings made
or preferred to any authority under
the said Act, and pending at the
commencement of this Act, shall,
after such commencement, be
transferred to and disposed of by
the officer or authority who would
have had jurisdiction to entertain
such application, appeal, revision
or other proceedings under this Act
as if it had been in force on the
date on which such application,
appeal, revision or other
proceedings were made or
preferred;
(2) Notwithstanding anything
contained in sub-section (1), -
[(a) any application, appeal, revision
or other proceedings made or
preferred to any officer or authority
under the said Act and pending at
the commencement of this Act,
shall, after such commencement, be
transferred to and disposed of by
the officer or authority who would
have had jurisdiction to entertain
such application, appeal, revision or
other proceedings under this Act as
if the said Act had been in force on
the date on which such application,
appeal, revision or other
proceedings were made or preferred.
Notwithstanding anything to the
contrary contained in any
judgment, decree or order of any
court or other authority, where
7
no review, revision or corrective
action could be initiated or
finalized in respect of any
assessment, order, proceeding
under the said Act prior to or
after 1st April, 2003, because of
judgment or decree of any court
or Tribunal and the said
assessment or order passed under
the said Act had attained finality,
the limitation of five years as
specified under Section 40 of the
said Act shall be deemed to be
eight years;”
8. We have considered the respective submissions. A
simple repeal of an Act leaves no room for expression of a
contrary opinion. However, if the repeal is followed by a fresh
enactment on the same subject, the applicability of the
General Clauses Act would undoubtedly require an
examination of the language in the new enactment to see if it
expresses a different intention from the earlier Act. The
enquiry would necessitate an examination if the old rights and
liabilities are kept alive or whether the new Act manifests an
intention to do away with or destroy them. If the new Act
8
manifests a different intention, the application of the General
Clauses Act will stand excluded.
9. There were no proceedings pending against the
respondent under the Act of 1973 when the new Act came into
force on 01.04.2003. The suo-moto revisional power under
Section 40 of the former Act was exercised on 07.06.2004.
The repeal and saving clause in Section 61 of the Act of 2003,
saved only pending proceedings under the repealed Act. The
intendment clearly was that matters which stood closed under
the Act of 1973 had to be given a quietus and could not be
reopened.
10. The assessment under the Act of 1973 having been
completed and refund ordered, the exercise of suo-moto
revisional powers under Section 40 of the same after repeal
was clearly unsustainable in view of the contrary intention
expressed under Section 61 of the Act of 2003, saving only
pending proceedings. Section 4 of the Punjab General Clauses
9
Act, 1858 will have no application in view of the contrary
intendment expressed in Section 61 of the repealing Act. Had
a contrary intention not been expressed, the issues arising for
consideration would have been entirely different. The
observations in State of Punjab vs. Mohar Singh Pratap
Singh, (1955) 1 SCR 893, as extracted below are considered
relevant:-
“8……….Whenever there is a repeal of an
enactment, the consequences laid down in Section
6 of the General Clauses Act will follow unless, as
the section itself says, a different intention
appears. In the case of a simple repeal there is
scarcely any room for expression of a contrary
opinion. But when the repeal is followed by fresh
legislation on the same subject we would
undoubtedly have to look to the provisions of the
new Act, but only for the purpose of determining
whether they indicate a different intention. The line
of enquiry would be, not whether the new Act
expressly keeps alive old rights and liabilities but
whether it manifests an intention to destroy
them…..”
The observations in Gammon India Ltd. (supra) at paragraph
73 are to the same effect.
10
11. The legislature, in its wisdom having noticed the
limitation and constraints under Section 61 of the Act of 2003,
made necessary amendments to the same by Act No. 3 of 2010
on 02.04.2010. Any interpretation saving the revisional power
under Section 40 of the Act of 1973, without any proceedings
pending on the relevant date, by resort to Section 4 of the
Punjab General Clause Act, 1858 would render the
amendment redundant, and an exercise in futility, something
which the legislature never intended to do. Such an
incongruous interpretation leading to absurdity has to be
avoided.
12. In Civil Appeal 10840-10841 of 2011, an additional
ground has been urged that the power of review under Section
41 of the Act of 1973 was exercised on 12.8.2003, by the
Deputy Excise and Taxation Officer, to review an order of
assessment dated 4.3.2002. Section 35 of the new Act vested
the power of review in the Tribunal exclusively.
11
13. The legislative provisions being different in the precedents
cited on behalf of the appellants, the same have no relevance
to the issue in controversy. The order of the High Court calls
for no interference.
14. The appeals, for reasons discussed, lack merit and are
dismissed.
………………………………….J.
(Ranjan Gogoi)
.……….………………………..J.
(Navin Sinha)
New Delhi,
September 15, 2017
12
13

A.P. Assigned lands prohibition Act Sec.3 (5) - Saving of sales - Nothing in this section shall apply to an assigned land which was purchased by a landless poor person in good faith and for valuable consideration from the original assignee or his transferee prior to the commencement of this Act and which is in the possession of such person for purposes of cultivation or as a house site on the date of such commencement.”

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3673 OF 2009
Government of Andhra Pradesh
and another …Appellant (s)
versus
K. Varalakshmi and others …
Respondent(s)
JUDGMENT
M.Y. Eqbal, J.:
This appeal by special leave is directed against the
judgment and order dated 16.3.2004 passed by the High
Court of Andhra Pradesh whereby appeal preferred by the
plaintiffs was allowed and the judgment and decree passed
by the trial court in the suit instituted by the plaintiffs has
been set aside.
2. The factual matrix of the case is that the suit schedule
property admeasuring about five acre in Survey No.71/3 of
1
Page 2
Paradesipalem was Poramboke land. One Sagiraju
Bangaramma was in possession and enjoyment of the said
land by raising agricultural crops since 1950. By virtue of
her possession, the suit property was assigned to her by the
first defendant/appellant through a rough patta in
R.C.No.4118 of 1961. She continued to be in possession and
enjoyment of the suit property as absolute owner, and by
way of a registered sale deed dated 12.1.1970 (Ex.A-2), she
sold the suit property for a valuable consideration to one
Durga Ramalingeswara Rao. Subsequently, said
Ramalingeswara Rao died and after his death his wife Durga
Venkata Ratnam and his sons succeeded to the suit schedule
property, who by sale deed dated 27.1.1982 (Ex.A-1) sold
the suit land to the plaintiffs for valuable consideration and
passed on the possession thereof.
3. In March, 1988, the second defendant/appellant being
Visakhapatnam Urban Development Authority (in short,
‘VUDA’) fixed boundary demarcations to a part of the
2
Page 3
plaintiffs land, purporting to act under the directions of the
District Collector of Visakhapatnam. The plaintiffs being
absolute owners and possessors of the land got issued notice
under Section 80 of the Civil Procedure Code requesting
defendants to desist from interfering with the plaintiffs’
possession. Thereafter, plaintiffs instituted a suit for
declaration of title and permanent injunction.
4. It was averred in the plaint that the original assignee
i.e. S. Bangaramma was a landless poor, who sold the suit
land in the year 1970 to another landless poor Durga
Ramalingeswara Rao, who purchased it in good faith for
valuable consideration much earlier to the enactment of A.P.
Assigned Lands (Prohibition of Transfers) Act, 1977 (in short,
“Act of 1977”). The heirs of the said Ramalingeswara Rao in
turn sold the suit land to landless poor, who are the
plaintiffs-respondents herein. Hence, both the sale
transactions are protected under Section 3(5) of the
aforesaid Act. If the Government wants to exercise its right
3
Page 4
of resumption it is bound by law to issue a show cause notice
to the persons who obtained right and interest in the said
land and to the said persons in actual possession of the land.
5. The first Appellant-defendant in its written statement
opposing the suit denied assignment of land to Sagiraju
Bangaramma. Defendant contended that the land assigned
to the plaintiff’s predecessors in title Bangaramma is not the
suit land. It is only the land covered by Survey No.71/10
which is only Ac.4-94 cents. As the land was assigned
subject to certain conditions and violation of such conditions
by the assignee would entitle to resume the land assigned
even suo motu without any notice or payment of any
compensation. Even the land in Survey No.71/10 which was
assigned to Bangaramma was cancelled vide
Rc.No.904/87/Dt.30-4-87 for violation of the conditions as
she failed to bring the lands under cultivation. The VUDA –
defendant no.2 pleaded for dismissal of the suit on the
ground that the assigned land is not alienable but is only
4
Page 5
heritable. Any alienations made are illegal, void and
unenforceable.
6. The trial court dismissed the suit holding that the suit
land is an assigned land and Sagiraju Bangaramma- the
assignee had no right to alienate the property. With regard
to relief of injunction, the trial court observed that as there is
no resumption of the assigned land by defendant no.1 and,
moreover, when the plaintiff is not entitled for the
declaration he cannot be granted any injunction which is an
equitable relief. Moreover, the plaintiff has not established
his possession over the suit schedule property on the date of
filing of the suit as no documentary evidence or oral
evidence was adduced on his behalf in that regard.
7. Aggrieved by the decision of the trial court, the
plaintiffs preferred appeal before the High Court, which
decreed the suit filed by the plaintiffs holding that the
plaintiffs led in oral and documentary evidence and proved
Ex.A1 and Ex.A2, and the Government did not examine any
5
Page 6
responsible officer nor marked relevant documents to
demonstrate the assignment in favour of Bangaramma.
Learned Single Judge of the High Court observed as under:
“20. Unfortunately the court below found that the
plaintiffs could establish the transaction between the
legal representatives of Ramalingeswara Rao and the
plaintiffs, but the transaction between Bangaramma
and Ramalingeswara Rao could not be established.
This view of the court below cannot be ccepted for
two reasons; firstly the plaintiffs successfully proved
the transaction between Bangaramma and
Ramalingeswara Rao through Ex.A2 and also proved
the transaction between the legal representatives of
Ramalingeswara Rao and the plaintiffs through Ex.A-
1. Therefore, the plaint averments, evidence of
plaintiffs and the documents are quire consistent.
xxxxx
26. The cumulative effect is that there is no
evidence whatsoever, whether oral or documentary,
on behalf of the defendants and the plaintiffs could
successfully prove their case by examining PW’s 1 &
2 and by marking Ex.A-1 and A-2. When that is the
evidence on record on behalf of the plaintiffs and no
evidence whatsoever on behalf of the defendants
and nothing contra could be elicited by the second
defendant from the cross-examination of PW.1 and 2,
I am of the view that the Court below was in error in
holding that the plaintiffs, though could prove the
sale transaction between the legal representatives of
said Ramalingeswara Rao and the plaintiffs, could
not prove the sale transaction and the consequent
title of the vendors of the plaintiffs.”
8. We have heard learned counsel for the parties and
perused the record. It has been pleaded on behalf of the
6
Page 7
plaintiffs-respondents that the schedule property measuring
5 acres in S.No.71/3 was in the possession and enjoyment of
one Smt. Sagi Raju Bangaramma since 1960 and she had
been cultivating the said land since then. She had also been
assigned a rough patta for the said land in R.C. No.4118/61.
It has been contended on behalf of the respondents-plaintiffs
that the said Survey No.71/3 was subsequently sub-divided
into Survey No.71/10 and the respondents are in possession
of the said land. The plaintiffs purchased the suit land from
the successors of the deceased Durga Ramalingeshwar Rao
for a valuable consideration of Rs.20,000/- vide registered
sale deed dated 27.1.1982 and since then they have been
cultivating on it. It is pleaded by the plaintiffs that they were
landless poor persons as contemplated under Section 3(5) of
the Act of 1977. Respondents have denied that there was
any show cause notice dated 24.3.1983 issued to the
original possessor of the land in S.No.71/3 and that
subsequent to the said show cause notice the assignment of
7
Page 8
the said land was cancelled on 15.5.1983 for violation of any
condition of the assignment.
9. Learned counsel appearing for the respondents
submitted that the respondents have established by oral as
well as documentary evidence that the transfer of the land
from Sagi Raju Bangaramma to Durga Ramalingeshwar Rao
was prior to the commencement of the Act of 1977 and that
he was a landless poor person as contemplated under
Section 3(5) of the said Act. Learned counsel further
submitted that even if the aforesaid Act is considered to be
retrospective in effect, it would be irrelevant for the
purposes of this case as the transfer is clearly protected by
Section 3(5) of the Act.
10. Before appreciating the rival contentions made by the
learned counsel, we would like to refer Section 3 of Andhra
Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977,
which is the sheet anchor of the appellants’ case. Section 3
reads as under:-
8
Page 9
“Section 3: Prohibition of transfer of assigned
lands (1) Where before or after the commencement
of this Act, any land has been assigned by the
Government to a landless poor person for purposes
of cultivation or as a house site, then,
notwithstanding anything to the contrary in any
other law for the time being in force or in the deed of
transfer or other document relating to such land, it
shall not be transferred and shall be deemed never
to have been transferred, and accordingly no right or
title in such assigned land shall vest in any person
acquiring the land by such transfer.
(2) No landless poor person shall transfer any
assigned land, and no person shall acquire any
assigned land, either by purchase, gift, lease,
mortgage, exchange or otherwise.
(3) Any transfer or acquisition made in
contravention of the provisions of sub-section (1) or
sub-section (2) shall be deemed to be null and void.
(4) The provisions of this section shall apply to any
transaction of the nature referred to in sub-section
(2) in execution of a decree or order of a civil court or
of any award or order of any other authority.
(5) Nothing in this section shall apply to an
assigned land which was purchased by a landless
poor person in good faith and for valuable
consideration from the original assignee or his
transferee prior to the commencement of this Act
and which is in the possession of such person for
purposes of cultivation or as a house site on the date
of such commencement.”
11. A bare perusal of the aforesaid provision would show
that sub-section (1) to (4) applies to all cases where the
assignment of lands was made either before or after the
commencement of the Act by the Government to a land less
poor person for the purpose of cultivation or a house site.
9
Page 10
However, sub-section (5) of Section 3 makes an exception in
cases where the land has been so assigned has been
purchased by another landless poor person in good faith or
for valuable consideration from the original assignee or the
transferee prior to the commencement of the Act.
12. It is the clear case of the plaintiff respondent that in
1971 their original assignee Sagiraju Bangaramma sold the
land for consideration to Durga Ramalingeswara Rao, who
was a landless poor person. The said Ramalingeswara Rao,
was in the cultivating possession of the land and growing
crop. After his death, his wife Smt. Venkata Ratnam and
sons succeeded the property and continuously remained in
cultivating possession till 1982 when they sold the land to
plaintiff in consideration of Rs.20,000/-. The plaintiffrespondents
proved the assignment deed and also led the
evidence and proved that they are the bona fide purchaser
for valuable consideration. Curiously enough, no evidence
10
Page 11
whatsoever was adduced on behalf of the defendantsappellants
in support of their defence, which has been rightly
noticed by the High Court.
13. In the background of these facts, we are fully in
agreement with the finding recorded by the High Court that
the transactions made in favour of the plaintiff and his
predecessors are fully saved by sub-section (5) of Section 3
of the Act.
14. Hence, we do not find any reason to differ with the
findings recorded by the High Court.
15. This appeal has, therefore, no merit and is liable to be
dismissed.
…………………………….J.
[ M.Y. Eqbal ]
11
Page 12
…………………………….J
New Delhi [Abhay Manohar
Sapre]
November 27, 2014
12
Page 13
ITEM NO.1 COURT NO.8 SECTION XIIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 3673/2009
GOVERNMENT OF A.P. & ANR.
Appellant(s)
VERSUS
K. VARALAKSHMI & ORS.
Respondent(s)
Date : 27/11/2014 This appeal was called on for hearing
today.
CORAM :
HON'BLE MR. JUSTICE M.Y. EQBAL
HON'BLE MR. JUSTICE SHIVA KIRTI SINGH
For Appellant(s)
Ms. C. K. Sucharita,Adv.
For Respondent(s)
Mr. Sridhar Potaraju,Adv.
Mr. John Mathew,Adv.
UPON hearing the counsel the Court made the
following
O R D E R
13
Page 14
T
(Sukhbir Paul Kaur) (Indu Pokhriyal)
Court Master Court Master

Specific performance - rejected - though aware of two conveyances of the same property, the plaintiff did not ask for their cancellation. This again, would stand in the way of a decree of specific performance for unless the sale made by Defendant No. 1 to Defendant No.2, and thereafter by Defendant No.2 to Defendant No.3 are set aside, no decree for specific performance could possibly follow.; Ram Awadh (supra) is a judgment by three Judges of this Court overruling Jugraj Singh vs. Labh Singh, (1995) 2 SCC 31, in which it was held that the plea that the plaintiff is not ready and willing to perform the contract is personal only to the seller-defendant. Subsequent purchasers cannot take this plea. This was stated to be an erroneous view of the law by the three Judge Bench, and the judgment in Jugrag Singh was set aside as follows:- “6. The obligation imposed by Section 16 is upon the Court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a),(b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the Court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh Case is erroneous.”

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 512 OF 2009
B. VIJAYA BHARATHI Appellant(s)
VERSUS
P. SAVITRI & ORS. Respondent(s)
J U D G M E N T
R.F. NARIMAN, J.
1) The present appeal arises out of a judgment dated
26.10.2005, delivered by a single Judge of the Andhra
Pradesh High Court, by which an appeal filed by the
original Defendant No.3 was allowed and a suit for
specific performance was dismissed.
2) The brief facts necessary for deciding this case are
as follows:
On 21.02.1992, an agreement to sell was entered into
between one Smt. P. Savitri, Respondent No.1 before us,
and B. Vijaya Bharati, by which the schedule property
was agreed to be sold for a consideration of Rs.
1,80,000/-. Rs. 1,30,000/- had already been paid in
advance. The balance consideration of Rs. 50,000/- was
to be paid later as and when the vendee gives notice
2
that she is ready to get the property registered, and on
intimation from the vendor to pay the balance
consideration.
3) Para 3 & 5 of the Agreement provided for necessary
permissions from the society for transfer of the
membership in the name of the vendee, which was to be
obtained by the vendor, and clearances required from the
Income Tax, Urban Land Ceiling Authorities and other
Authorities were also to be obtained by the vendor. The
said Agreement, though it was an agreement to sell only,
was registered by way of abundant caution.
4) On 13.03.1992, the first defendant appeared before
the Registering Authority to execute a General Power of
Attorney in favour of the husband of the plaintiff in
order to obtain the permissions referred to above. It
has been concurrently found that on this date, she
resiled from such execution of General Power of Attorney
in favour of the plaintiff's husband and left the
Sub-Registrar's office without registering the General
Power of Attorney.
5) Thereafter, the property was sold by Defendant No.1
on 12.05.1992 to Defendant No.2 for a sale consideration
of Rs. 1,20,000/-. Defendant No.2, in turn, sold the
property on 05.07.1993 to Defendant No.3 for a sum of
3
Rs. 1,95,000/-. Both the sales were by registered
conveyance.
6) The plaintiff issued the necessary notice stating
that she was ready to pay the balance Rs.50,000/- on
18.02.1994. Since the reply to the said notice was that
the agreement was no longer valid, the plaintiff filed a
suit for specific performance on 13.04.1994.
7) The trial Court decreed the said suit for specific
performance, finding that the agreement of 21.02.1992
was prior in point of time to both the registered sale
deeds. It found, as a matter of fact, that the
purchasers of the property could not be said to be bona
fide purchasers given the fact that no encumbrance
certificate was called for before any such purchase.
8) Defendant No.3 appealed to the High Court, and the
High Court set aside the decree of the trial Court
stating that the plaintiff was not ready and willing
through out as was required by Section 16(c) of the
Specific Relief Act, 1963 and held that the suit was
filed long after, in fact, more than two years after the
repudiation on 13.03.1992. A single Judge of the High
Court held thus:
“Till Ex.A-2 notice was issued, the Plaintiff
has not made any endeavour to pay the balance
sale consideration, particularly, when the 1st
4
Defendant having appeared before the
registering authority to execute the GPA in
favour of the husband of the Plaintiff on
13-3-1992 and resiled from execution of such
GPA in favour of the Plaintiff and left the
Sub-Registrar's Office without registering the
GPA. Any prudent person, who obtained the
registered agreement of sale by paying 2/3rd of
the sale consideration, will not keep quiet for
a period of nearly one year eleven months after
the vendor repudiated the contract and refused
to register the GPA to complete the sale
transaction, which clearly discloses that the
total inaction is on the part of the plaintiff.
Even after such refusal, she has not issued any
notice to the 1st Defendant to execute the sale
deed by offering balance sale consideration and
expressing her readiness and willingness to
complete the transaction. Thus, the plaintiff
waived the right obtained under the agreement
of sale and allowed the 1st Defendant to execute
the sale deed in favour of the 2nd Defendant.
Only on such execution of the sale deed in
favour of the 2nd Defendant, the Plaintiff got
issued the legal notice to the Defendants and
the same was suitably replied by them under
Exs. A-3 and A-4. She has nowhere stated about
her readiness and willingness to perform her
part of the contract all along from the date of
the agreement till her deposition in the
Court.”
5
9) Mr. M.N. Rao, learned Senior Counsel appearing on
behalf of the appellant, has argued before us that an
appeal at the behest of Defendant No.3 was allowed,
Defendant No.1 having gone out of the picture
altogether. He further argued before us that it is
clear that Defendant Nos. 1 and 2 were in collusion with
each other because the property which had been sold for
Rs.1,80,000/- in February, 1992 could not possibly be
sold in May, 1992 for a lesser amount of Rs.1,20,000/-.
The fact that no encumbrance certificate was also taken
was an important pointer to the fact that there was no
bona fides in either Defendant Nos. 1 and 2 or Defendant
No.3 and that therefore, the High Court was in error in
stating that this vital requirement is of secondary
importance once the requirement of readiness and
willingness is not proved. He also argued, citing
Madamsetty Satyanarayana vs. G. Yellogi Rao and two
others, AIR 1965 SC 1405 = (1965) (2) SCR 221 in which
Subba Rao, J. held that the English practice of coming
to the Court without any delay for the relief of
specific performance cannot possibly apply to India when
a period of limitation of three years is granted for
approaching the Court. That decision, therefore, held
that mere delay by itself cannot be a bar to specific
6
performance, and this was also pressed with some force
by Mr. Rao.
10) Mr. A. Subba Rao, on the other hand, supported the
judgment of the High Court and argued that not only was
there delay in the present case, but it was coupled with
the fact that there was no readiness and willingness, as
is correctly held by the High Court. Further, he also
stated that the present suit in its present form would
not be maintainable for the added reason that despite
the fact that it came to the plaintiff's knowledge that
there were two registered conveyances prior to the suit,
the plaintiff did not amend the suit to ask for a decree
of cancellation of the said sale deeds.
11) Having heard the learned counsel appearing for the
parties, we are of the view that the High Court judgment
is correct and does not require to be interfered with.
12) One crucial fact that stares us in the face is that
on 13.03.1992 the first defendant ran away from the
Registering Authority making it clear that she did not
want to act in furtherance of the Agreement in executing
a General Power of Attorney in favour of the plaintiff's
husband. The High Court was right in stating that no
prudent person would stay quiet for a period of one year
and eleven months after such an unequivocal repudiation
7
of the agreement if they were really interested in going
ahead with the sale transaction. The only inference,
therefore, from this is that the plaintiff cannot
possibly be said to be ready and willing throughout to
perform their part of the agreement.
13) However, Mr. Rao has pressed into service a judgment
of this Court in M.M.S. Investments, Madurai and Others
vs. V. Veerappan and Others, (2007) 9 SCC 660. While
stating the background facts, the learned Judges
referred to a suit for specific performance which
resulted in a decree passed by the trial Court. After
the decree was passed, defendants through their Power of
Attorney sold a large extent of properties, including
the subject-matter of the suit, in favour of certain
other persons, who happened to be the appellants before
this Court. In that case, the High Court held that
there would be no bar for the appellant to raise any
issue on merits of the appeal on the facts of that case
except the defence of readiness and willingness as
provided under Section 16(c) of the Specific Relief Act.
14) This Court went on to distinguish a three-Judge Bench
judgment in Ram Awadh (dead) by Lrs. And Others vs.
Achhaibar Dubey and Another, (2000) 2 SCC 428 and held
as follows:-
8
“6. Questioning the plea of readiness and
willingness is a concept relatable to an
agreement. After conveyance the question of
readiness and willingness is really not
relevant. Therefore, the provision of the
Specific Relief Act, 1963 (in short “the Act”)
is not applicable. It is to be noted that the
decision in Ram Awadh case relates to a case
where there was only an agreement. After the
conveyance, the only question to be adjudicated
is whether the purchaser was a bona fide
purchaser for value without notice. In the
present case the only issue that can be
adjudicated is whether the appellants were bona
fide purchasers for value without notice. The
question whether the appellants were ready and
willing is really of no consequence. In Ram
Awadh case the question of the effect of a
completed sale was not there. Therefore, that
decision cannot have any application so far as
the present case is concerned. Once there is a
conveyance the concept would be different and
the primary relief could be only cancellation.”
15) Ram Awadh (supra) is a judgment by three Judges of
this Court overruling Jugraj Singh vs. Labh Singh, (1995)
2 SCC 31, in which it was held that the plea that the
plaintiff is not ready and willing to perform the
contract is personal only to the seller-defendant.
Subsequent purchasers cannot take this plea. This was
stated to be an erroneous view of the law by the three
9
Judge Bench, and the judgment in Jugrag Singh was set
aside as follows:-
“6. The obligation imposed by Section 16 is upon
the Court not to grant specific performance to a
plaintiff who has not met the requirements of
clauses (a),(b) and (c) thereof. A court may
not, therefore, grant to a plaintiff who has
failed to aver and to prove that he has
performed or has always been ready and willing
to perform his part of the agreement the
specific performance whereof he seeks. There is,
therefore, no question of the plea being
available to one defendant and not to another.
It is open to any defendant to contend and
establish that the mandatory requirement of
Section 16(c) has not been complied with and it
is for the Court to determine whether it has or
has not been complied with and, depending upon
its conclusion, decree or decline to decree the
suit. We are of the view that the decision in
Jugraj Singh Case is erroneous.”
16) In the facts of the M.M.S. Investments case, after
the Trial Court decreed the suit, the property was
conveyed to the plaintiff. It is only thereafter that
the appellants in that case purchased the property. In
the facts of the present case, the Defendants 2 and 3
purchased the property even before the suit for specific
performance was filed. In the present case there is no
conveyance in favour of the plaintiff after which the
10
Defendants 2 and 3 purchased the property. The ratio of
M.M.S. Investments would therefore be of no assistance
to the appellant herein. On the other hand, the three
Judge Bench decision in Ram Awadh would apply on all
fours.
17) It must also be noted that though aware of two
conveyances of the same property, the plaintiff did not
ask for their cancellation. This again, would stand in
the way of a decree of specific performance for unless
the sale made by Defendant No. 1 to Defendant No.2, and
thereafter by Defendant No.2 to Defendant No.3 are set
aside, no decree for specific performance could possibly
follow. While Mr. Rao may be right in stating that mere
delay without more would not dis-entitle his client to
the relief of specific performance, for the reasons
stated above, we find that this is not such a case. The
High Court was clearly right in finding that the bar of
Section 16(c) was squarely attracted on the facts of the
present case, and that therefore, the fact that
Defendant Nos. 2 and 3 may not be bona fide purchasers
would not come in the way of stating that such suit must
be dismissed at the threshold because of lack of
readiness and willingness, which is a basic condition
for the grant of specific performance.
11
18) The appeal accordingly, stands dismissed.
.......................... J.
(ROHINTON FALI NARIMAN)
.......................... J.
(SANJAY KISHAN KAUL)
New Delhi;
August 10, 2017.