bail petition whether it is filed under Section 438 or Section 439 of the Code=The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Puran v. Rambilas,(2001) 6 SCC - where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted. (See Ram Govind Upadhyay)”

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2188 OF 2017
(Arising out of S.L.P.(Crl.)No.9672 of 2017)
Prem Giri ….Appellant(s)
VERSUS
State of Rajasthan ….Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed against the final judgment
and order dated 22.11.2017 passed by the High Court
of Judicature for Rajasthan at Jodhpur in S.B.
Criminal Misc. Bail No.9471 of 2017 whereby the
Single Judge of the High Court dismissed the bail
2
application filed under Section 438 of the Code of
Criminal Procedure, 1973(hereinafter referred to as
“the Code”) by the appellant herein.
3) Facts of the case lie in a narrow compass. They,
however, need mention infra to appreciate the short
issue involved in the case.
4) The appellant apprehending his arrest in
connection with commission of the offences
punishable under Sections 143, 341, 323, 308, 332
and 353 of the Indian Penal Code, 1860 (hereinafter
referred to as “the IPC”) pursuant to FIR No. 332/2017
registered at Police Station Jaitaran, Dist. Pali, filed an
application for grant of anticipatory bail under Section
438 of the Code before the High Court of Rajasthan.
The Single Judge of the High Court dismissed the
application by impugned order, which has given rise to
filing of this appeal by way of special leave in this
Court by the applicant.
5) The impugned order reads as under:
3
“This bail application has been filed
under Section 438 CrPC in connection with
FIR No.332/2017 registered at Police Station
Jaitaran, Dist. Pali for the offences under
Sections 143, 341, 323, 308, 332 & 353 IPC.
Heard learned counsel for the petitioner
and learned Public Prosecutor appearing for
the State as also learned counsel for the
complainant and carefully perused the
relevant material made available on record.
Looking to the overall facts and
circumstances of the case, but without
expressing any opinion on the merits and
demerits of the case, I do not deem it just
and proper to enlarge the petitioner(s) on
bail.
Therefore, this bail application is
rejected.”
6) We have heard learned counsel for the appellant
and perused the record of the case. In our view,
keeping in view the order, which we are passing, it is
not necessary to issue notice to the State much less to
hear the State in this appeal.
7) Mere perusal of the impugned order quoted
supra would go to show that the Single Judge failed to
assign any reason for rejecting the bail application of
the appellant.
4
8) The general observations that "Looking to the
overall facts and circumstances of the case, it is not
considered proper to grant bail to the Petitioner" can
never be the reasoning much less judicial reasoning
required for rejection of the bail petition whether it is
filed under Section 438 or Section 439 of the Code.
9) We are constrained to observe that the learned
Single Judge did not apply its judicial mind and
passed the impugned order in a very casual and
cavalier manner. This Court cannot countenance such
casual approach of the High Court while deciding the
application for bail.
10) Time and again, this Court has emphasized the
need for assigning reasons while considering the grant
or reject of the bail. It is apt to reproduce what this
Court has held in Paras 11 and 12 of the decision in
Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu
Yadav & Anr. (2004) 7 SCC 528 on this issue.
5
“11. The law in regard to grant or refusal of
bail is very well settled. The court granting
bail should exercise its discretion in a
judicious manner and not as a matter of
course. Though at the stage of granting bail a
detailed examination of evidence and
elaborate documentation of the merit of the
case need not be undertaken, there is a need
to indicate in such orders reasons for prima
facie concluding why bail was being granted
particularly where the accused is charged of
having committed a serious offence. Any
order devoid of such reasons would suffer
from non-application of mind. It is also
necessary for the court granting bail to
consider among other circumstances, the
following factors also before granting bail;
they are:
(a) The nature of accusation and the severity
of punishment in case of conviction and the
nature of supporting evidence.
(b) Reasonable apprehension of tampering
with the witness or apprehension of threat to
the complainant.
(c) Prima facie satisfaction of the court in
support of the charge. (See Ram Govind
Upadhyay v. Sudarshan Singh, (2002) 3 SCC
598 and Puran v. Rambilas,(2001) 6 SCC
338)
12. In regard to cases where earlier bail
applications have been rejected there is a
further onus on the court to consider the
subsequent application for grant of bail by
noticing the grounds on which earlier bail
applications have been rejected and after
such consideration if the court is of the
opinion that bail has to be granted then the
said court will have to give specific reasons
why in spite of such earlier rejection the
subsequent application for bail should be
granted. (See Ram Govind Upadhyay)”
6
11) In our considered opinion, the Single Judge failed
to take note of the law laid down by this Court quoted
supra and thus erred in passing the impugned order.
He also neither set out the facts of the case nor
mentioned the submissions of the learned counsel
appearing for both the parties and nor his reasoning
as to why he does not consider it proper to grant
anticipatory bail to the appellant. This was the least,
which was expected of from the Single Judge to keep
in mind, while passing the order.
12) In such a situation arising in this case, we
instead of considering the case of the appellant on its
merits in this appeal consider just and proper to
remand the case to the High Court for deciding the
bail application afresh on its merits and in accordance
with law.
13) We, however, make it clear that we have not gone
into the merits of the case of the appellant having
7
formed an opinion to remand the case to the High
Court for deciding the bail application afresh on merits
and, therefore, the High Court would decide the bail
application un-influenced by any of our observations
on merits except to take into account what we have
said about the manner in which the bail application is
required to be decided.
14) In view of foregoing discussion, the appeal
succeeds and is allowed. Impugned order is set aside
and the case is remanded to the High Court for
deciding the bail application of the appellant afresh on
its merits.

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

 ...
……..................................J.
 [ABHAY MANOHAR SAPRE]
New Delhi;
December 14, 2017 

whether the prosecution succeeded in proving the existence of common object amongst the accused persons and whether the accused persons acted in prosecution of the common object and that the accused persons knew that the death was likely to be committed, to convict the accused under Section 302 IPC with the aid of Section 149 IPC.= Section 149 IPC consists of two parts:  The first part of the section means that there exists common object and that the offence has been committed in prosecution of the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member.  The second part of the section means that even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section149, if it can be shown that the offence was such as the members knew was likely to be committed. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was the one which the members knew to be likely to be committed. Once the court finds that the ingredients of Section 149 IPC are fulfilled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the court to see as to who actually did the offensive act nor would it be open to the court to require the prosecution to prove which of the members did which of the above two ingredients. Before recording the conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be established. = Conviction of accused Nos. 4 to 10 [Selvam (A4), Antony Innasi (A5), Charles (A6), Jerone (A7), Edwinson (A8), Raj (A9) and Elizabethan (A10)] under Section 302 IPC read with Section 149 IPC is set aside and they are acquitted of the same.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 413 OF 2012
JOSEPH …Appellant
Versus
STATE, REP. BY INSPECTOR OF POLICE ....Respondent
With
CRIMINAL APPEAL NO.585 OF 2013
SAHAYAM AND ORS. ....Appellants
Versus
STATE, REP. BY INSPECTOR OF POLICE
AND ANR. ....Respondents
And
CRIMINAL APPEAL NO.662 OF 2016
EDWINSON …Appellant
Versus
STATE, REP. BY INSPECTOR OF POLICE
AND ORS. ....Respondents
J U D G M E N T
R. BANUMATHI, J.
These appeals arise out of the judgment dated 10.02.2011 passed
by Madras High Court at Madurai Bench dismissing Criminal Appeal
No.519 of 2002 thereby affirming the conviction of the appellants under
Page No.1 of 17
Section 302 read with Section 149 IPC, Sections 341, 324, 148, 147,
323 read with Section 149 IPC and Section 326 IPC and also the
sentence of imprisonment imposed upon each of them.
2. Briefly stated case of prosecution is that on 12.01.1994, PW2-
Anthony Mududhagam, deceased Luis John Kennedy and Raja came to
attend funeral of one Jesu (PW2's cousin). While they were standing
near Sahayam's (A3) house at about 3.05 p.m., Jesu Adimai (A1)(since
dead), Selvaraj (A2) and Sahayam (A3) armed with country made
bombs in their hands, Selvam (A4) and Antony Innasi (A5) armed with
sickles, Charles (A6), Jerone (A7), Edwinson (A8), Raj (A9) and
Elizabethan (A10) with sticks and Joseph (A11) came there and
confronted the deceased Kennedy, PW2 and Suresh (PW1) [who just
came there to see his father PW2]. Joseph (A11) instigated all the
accused to attack on them. Selvam (A4) attacked PW1 with sickle on
the left shoulder. Jesu Adimai (A1) threw one country bomb which hit
the forehead of the deceased and the deceased fell down. Selvaraj (A2)
threw the bomb which hit the right leg of Raja. Sahayam (A3) also threw
a bomb which has fallen on the ground. Antony Innasi (A5) attacked
PW2 on his left shoulder. Accused Nos.6 to 10 attacked Raja and PW2
indiscriminately causing injuries to them. On seeing the by-standers
coming towards the spot, the accused ran away from the scene.
Page No.2 of 17
Thereafter Johnson (PW-3) hired a tempo and took the injured to
Nagercoil Kottar Government Hospital. On the way to hospital, Kennedy
succumbed to injuries.
3. Based on the statement of Raja (Ex.P-16), FIR (Ex.P-9) was
registered in Crime No.23/94 under Sections 147, 148, 326, 307 and
302 IPC as well as under the Indian Explosives Act. PW9-Krishnan Nair,
Inspector in Charge had taken up the initial investigation and prepared
rough sketch (Ex.P-10) of the place of occurrence and seized articles
viz., blood stained earth (M.O.6) and sample earth (M.O.7) from the
scene of crime and conducted the inquest (Ex.P11). PW6-Dr.
Kutralingam conducted autopsy on the body of the deceased and noted
"lacerated injury with burnt out black skin margins over the head both
ocular areas; both eyes found to be missing; Face and forehead was
seen seriously disfigured." PW6-Dr. Kutralingam opined that "the death
was due to head injuries and the same could have been caused by
explosion of bomb" and issued post-mortem certificate (Ex.P-6). On
15.01.1994, PW12-Ganesan-Inspector of Police, took up further
investigation and arrested the accused Nos. 2 to 10 on 25.01.1994 at
about 04:45 a.m. Confession statement (Ex.P3) recorded from Selvam
(A4) which led to recovery of sickle with wooden handle (M.O.2) and
sickle with iron handle (M.O.3). On completion of investigation and
Page No.3 of 17
submission of final report on 08.11.1995, all the accused were
remanded to judicial custody.
4. To bring home the guilt of the accused, prosecution has examined
witnesses (PWs 1 to 12) and marked nineteen exhibits (Ex.P-1 to Ex.P19)
and seven material objects (M.O.1 to M.O.7). The accused were
questioned under Section 313 Cr. P.C. about the incriminating evidence
and circumstances and the accused denied all of them. Upon
consideration of evidence adduced by the prosecution, the trial court
held that the prosecution has proved the existence of common object of
the unlawful assembly and that the accused acted in furtherance of the
common object and convicted all the eleven accused under Section 302
IPC with the aid of constructive liability under Section 149 IPC and
sentenced all of them to undergo life imprisonment. The accused were
also convicted for various other offences and were sentenced to
undergo various imprisonment. Being aggrieved by the verdict of
conviction and sentence imposed upon them, the accused preferred
appeal before the High Court which came to be dismissed by the High
Court by the impugned judgment.
5. Taking us through the evidence and the impugned judgment,
learned counsel for the appellants submitted that the prosecution has
failed to prove the common object of the unlawful assembly to cause the
Page No.4 of 17
death of deceased Kennedy that the accused acted in furtherance of the
common object. It was contended that the appellants should not have
been convicted for causing murder of Kennedy with the aid of Section
149 IPC. The learned counsel emphasized that the prosecution has
failed to prove existence of common object of the unlawful assembly and
that the appellants knew that death of Kennedy was likely to be caused
by the unlawful assembly and therefore, the conviction of the appellants
under Section 302 IPC with the aid of Section 149 IPC cannot be
sustained.
6. Per contra, learned counsel appearing for the State submitted that
from the evidence adduced by the prosecution and the attending
circumstances of the case, prosecution has clearly proved the existence
of common object and the courts below rightly convicted the accused
under Section 302 IPC with the aid of Section 149 IPC.
7. We have considered the rival contentions and perused the
impugned judgment and materials on record.
8. The question falling for consideration is whether the prosecution
succeeded in proving the existence of common object amongst the
accused persons and whether the accused persons acted in prosecution
of the common object and that the accused persons knew that the death
was likely to be committed, to convict the accused under Section 302
Page No.5 of 17
IPC with the aid of Section 149 IPC.
9. Before we consider the testimony of the witnesses, let us consider
the requirements for invoking the vicarious liability under Section 149
IPC. Section 149 IPC consists of two parts:
 The first part of the section means that there exists
common object and that the offence has been committed in
prosecution of the common object. In order that the
offence may fall within the first part, the offence must be
connected immediately with the common object of the
unlawful assembly of which the accused was member.
 The second part of the section means that even if the
offence committed is not in direct prosecution of the
common object of the assembly, it may yet fall under
Section149, if it can be shown that the offence was such as
the members knew was likely to be committed.
What is important in each case is to find out if the offence was
committed to accomplish the common object of the assembly or was the
one which the members knew to be likely to be committed. Once the
court finds that the ingredients of Section 149 IPC are fulfilled, every
person who at the time of committing that offence was a member of the
assembly has to be held guilty of that offence. After such a finding, it
would not be open to the court to see as to who actually did the
offensive act nor would it be open to the court to require the prosecution
to prove which of the members did which of the above two ingredients.
Before recording the conviction under Section 149 IPC, the essential
ingredients of Section 141 IPC must be established.
Page No.6 of 17
10. Scope of two parts of Section 149 IPC has been explained in
Rajendra Shantaram Todankar v. State of Maharashtra and Ors. (2003)
2 SCC 257, this Court has explained Section 149 and held as under:
"14. Section 149 of the Indian Penal Code provides that if an offence is
committed by any member of an unlawful assembly in prosecution of
the common object of that assembly, or such as the members of that
assembly knew to be likely to be committed in prosecution of that
object, every person who at the time of the committing of that offence,
is a member of the same assembly is guilty of that offence. The two
clauses of Section 149 vary in degree of certainty. The first clause
contemplates the commission of an offence by any member of an
unlawful assembly which can be held to have been committed in
prosecution of the common object of the assembly. The second clause
embraces within its fold the commission of an act which may not
necessarily be the common object of the assembly, nevertheless, the
members of the assembly had knowledge of likelihood of the
commission of that offence in prosecution of the common object. The
common object may be commission of one offence while there may be
likelihood of the commission of yet another offence, the knowledge
whereof is capable of being safely attributable to the members of the
unlawful assembly. In either case, every member of the assembly
would be vicariously liable for the offence actually committed by any
other member of the assembly. A mere possibility of the commission of
the offence would not necessarily enable the court to draw an
inference that the likelihood of commission of such offence was within
the knowledge of every member of the unlawful assembly. It is difficult
indeed, though not impossible, to collect direct evidence of such
knowledge. An inference may be drawn from circumstances such as
the background of the incident, the motive, the nature of the assembly,
the nature of the arms carried by the members of the assembly, their
common object and the behaviour of the members soon before, at or
after the actual commission of the crime. Unless the applicability of
Section 149 — either clause — is attracted and the court is convinced,
on facts and in law, both, of liability capable of being fastened
vicariously by reference to either clause of Section 149 IPC, merely
because a criminal act was committed by a member of the assembly
every other member thereof would not necessarily become liable for
such criminal act. The inference as to likelihood of the commission of
the given criminal act must be capable of being held to be within the
knowledge of another member of the assembly who is sought to be
held vicariously liable for the said criminal act...... " [underlining
added]
Page No.7 of 17
The same principles have been reiterated in State of Punjab v. Sanjiv
Kumar alias Sanju and Ors. (2007) 9 SCC 791.
11. Creation of vicarious liability under Section 149 IPC is well
elucidated in Allauddin Mian and Others. Sharif Mian and Anr. v. State of
Bihar (1989) 3 SCC 5, this Court held:
"8. ........Therefore, in order to fasten vicarious responsibility on any
member of an unlawful assembly the prosecution must prove that the
act constituting an offence was done in prosecution of the common
object of that assembly or the act done is such as the members of that
assembly knew to be likely to be committed in prosecution of the
common object of that assembly. Under this section, therefore, every
member of an unlawful assembly renders himself liable for the criminal
act or acts of any other member or members of that assembly provided
the same is/are done in prosecution of the common object or is/are
such as every member of that assembly knew to be likely to be
committed. This section creates a specific offence and makes every
member of the unlawful assembly liable for the offence or offences
committed in the course of the occurrence provided the same
was/were committed in prosecution of the common object or was/were
such as the members of that assembly knew to be likely to be
committed. Since this section imposes a constructive penal liability, it
must be strictly construed as it seeks to punish members of an
unlawful assembly for the offence or offences committed by their
associate or associates in carrying out the common object of the
assembly......" [underlining added]
The same principles were reiterated in paras (26) and (27) in Daya
Kishan v. State of Haryana (2010) 5 SCC 81 and also in Kuldip Yadav
and Ors. v. State of Bihar (2011) 5 SCC 324.
12. Whether the members of the unlawful assembly really had the
common object to cause the murder of the deceased has to be decided
in the facts and circumstances of each case, nature of weapons used by
Page No.8 of 17
such members, the manner and sequence of attack made by those
members on the deceased and the circumstances under which the
occurrence took place. It is an inference to be deduced from the facts
and circumstances of each case (vide Lalji and Ors. v. State of U.P.
(1989) 1 SCC 437; Ranbir Yadav v. State of Bihar (1995) 4 SCC 392;
Rachamreddy Chenna Reddy and Ors. v. State of A.P. (1999) 3 SCC
97).
13. PW-1-Suresh and deceased Kennedy are the sons of PW-2
Anthony Muduthagam. There is a family dispute between PW-2's family
and Jesu Adimai (A1) in respect of laying the fishing net in the sea. On
12.01.1994, at about 03.00 p.m., PW-2-Anthony Muduthagam,
deceased Kennedy and injured person Raja went to attend the funeral of
PW-2's cousin Jesu. While they were talking to one another, on the
exhortation of Joseph (A11), the accused party attacked the complainant
party. The occurrence started on the eastern side of the church and in
front of the house of Sahayam (A3).
14. There are only about 350 houses in Perumanal village and most of
them are fishermen. In the village, there were two factions who
assembled to attend the funeral of Jesu. There was no common object
among the accused as only Joseph (A11) had enmity with PW-2's
Page No.9 of 17
family. Jesu Adimai (A1), Selvaraj (A2) and Sahayam (A3) were armed
with bombs; Selvam (A4) and Antony Innasi (A5) were armed with
sickles; and A6 to A10 were armed with sticks. On the exhortation of
Joseph (A11), Jesu Adimai (A1) hurled the bomb which hit the forehead
of deceased Kennedy and he fell down. Selvam (A2) threw the country
bomb which hit the right ankle of Raja causing injuries to him. The
bomb hurled by Sahayam (A3) fell on the ground and exploded. The
deceased died of head injuries, fracture of frontal neck and both eyes
found missing. PW-6-Dr. Kutralingam opined that the injuries on the
deceased could have been caused by hurling of bombs. The fact that
accused Nos. 1 to 3 carrying the bombs, gives indication that they had
the common intention to cause the death of the complainant party.
Selvam (A4) attacked PW-1-Suresh with aruval on the left shoulder and
Antony Innasi (A5) attacked PW-2-Anthony Muduthagam on the left
shoulder and accused Nos. 6 to 10 attacked the complainant party with
sticks. There is no evidence to prove that the accused Nos. 1 to 11 had
any common object to commit the murder of Kennedy which activated all
of them to join in furtherance of the common object.
15. As noted earlier, first part of Section 149 IPC states about the
commission of an offence in prosecution of the common object of the
Page No.10 of 17
assembly whereas the second part takes within its fold knowledge of
likelihood of the commission of that offence in prosecution of the
common object. In the facts and circumstances of the case, we are of
the view that the prosecution has not proved the existence of the
common object amongst the accused and that all of them acted in
furtherance of the common object to invoke the first part of Section 149
IPC.
16. Let us consider whether the act of the accused falls under the
second part of Section 149 IPC. As members of the unlawful assembly,
whether the accused knew that the offence of murder is likely to be
committed. It is a matter of evidence that Sahayam's house is situated
next to the house of Jesu, for whose funeral, the two factions have
assembled. Accused Nos. 4 to 10 may not have had the knowledge that
Jesu Adimai (A1), Selvaraj (A2) and Sahayam (A3) were armed with
bombs and that the murder of Kennedy was likely to be committed. On
the exhortation of Joseph (A11), the accused seem to have individually
reacted. There is no definite finding of the High Court that the common
object of the assembly was to commit the murder or that the accused
persons had knowledge that the offence of murder was likely to be
committed and hence, the conviction of the accused Nos. 4 to 10 under
Page No.11 of 17
Section 302 IPC with the aid of Section 149 IPC cannot be sustained.
17. It is now well established that this Court does not, by special leave
convert itself into an appellate court to appreciate evidence for third
time. As has been consistently held by this Court in Ramaniklal
Gokaldas and Others v. State of Gujarat (1976) 1 SCC 6 and
Ramanbhai Naranbhai Patel and others v. State of Gujarat (2000) 1
SCC 358 and other cases, unless some serious infirmity or perversity is
shown, this Court normally refrains from reappreciating the matter on
appeal by special leave. In the case at hand, hurling of bombs is
attributed only to accused Nos. 1 to 3. Had the other accused intended
to kill Kennedy and the witnesses, they would have inflicted injuries on
the vital organs or used the surest weapon of committing murder and not
mere sickles/sticks. Conviction of accused Nos. 4 to 10 under Section
302 IPC with the aid of Section 149 IPC, in our view, suffers from
serious infirmity and liable to be set aside.
18. Insofar as the conviction of the Sahayam (A3), an attempt was
made that he cannot be convicted under Section 302 IPC as Selvaraj
(A2) and Sahayam (A3) were acquitted under Section 27(2) and Section
27(3) of the Arms Act, 1959. As rightly contended by the learned counsel
for the State, the sole reason for acquittal under Section 27(2) and
Page No.12 of 17
Section 27(3) of the Arms Act is non-obtaining of prior sanction from
District Magistrate to prosecute the accused under the Arms Act. Hence,
the acquittal of the accused Nos. 2 and 3 under Section 27(2) and
Section 27(3) of the Arms Act is of no avail to accused No. 3.
19. Joseph A11: On behalf of Joseph (A11), it was submitted that
there is nothing on record to show the involvement of Joseph in the
occurrence and no overt act is attributed to him and hence, no liability
could be fastened upon him. PWs 1 to 3 have consistently stated that
Joseph (A11) asked them to "...hack and hurl bomb...". The words
uttered by accused Joseph is the starting point for all the troubles and all
the accused acted only on such instigation of accused Joseph (A11). In
his evidence, Johnson (PW3) had stated "that there had been dispute
between the families of Jesu Adimai (A1) and Joseph (A11) and the
family of Anthony Muduthagam (PW2) with regard to fishing at sea".
Though no overt act is attributed to the accused Joseph, the words
uttered by him "...hack, throw bomb and kill..." clearly shows that only on
the exhortation of the accused Joseph, other accused acted and
attacked the complainant party. Joseph (A11) was convicted under
Section 302 IPC read with Section 149 IPC even though he was
charged under Section 302 IPC read with Section 109 IPC (fourth
Page No.13 of 17
charge). Though the conviction of the accused Joseph under Section
302 IPC read with Section 149 IPC cannot be sustained, the same is
modified as conviction under Section 302 IPC read with Section 109
IPC.
20. As discussed above, on the exhortation of Joseph (A11), Jesu
Adimai (A1) hurled the bomb which hit the forehead of deceased
Kennedy. Selvam (A2) hurled the bomb which hit the right ankle of Raja.
Bomb hurled by Sahayam (A3) fell on the floor and exploded. The bomb
hurled by Selvaraj (A2) and Sahayam (A3), though, had not hit the
deceased, the fact remains that they carried the bomb which clearly
indicates that Sahayam (A3) was sharing the intention with Jesu Adimai
(A1) and Selvaraj (A2) in committing the murder. Conviction of Sahayam
(A3) under Section 302 IPC read with Section 149 IPC is modified as
conviction under Section 302 IPC read with Section 34 IPC.
21. Conviction of accused Nos. 4 to 10 under Section 302 IPC with the
aid of Section 149 IPC suffers from serious infirmity and the same
cannot be sustained. Since the prosecution has not succeeded in
establishing and proving that there was an unlawful assembly with a
common object to commit the offence, conviction of the accused Nos. 3
to 5 (under Section 148 IPC) and accused Nos. 6 to 11 (under Section
Page No.14 of 17
147 IPC) are set aside.
22. Considering the individual acts of the appellants, Selvam (A4) and
Antony Innasi (A5) attacked PW1 and PW2 on their left shoulders
respectively with sickles, conviction of Antony Innasi (A5) is modified as
conviction under Section 324 IPC and the sentence of rigorous
imprisonment of one year is maintained. Conviction of Selvam (A4)
under Section 324 is affirmed and the sentence of imprisonment of one
year imposed upon him is affirmed. Considering the acts of accused
Nos.6 to 10 that they attacked Raja and PW-2 with sticks, conviction of
accused Nos.6 to 10 under Section 323 read with Section 149 is
modified as conviction under Section 323 IPC maintaining their sentence
of imprisonment of six months.
23. Conviction of Sahayam (A3) and Joseph (A11) under Section 302
IPC read with Section 149 IPC is modified as Section 302 IPC read with
Section 34 IPC and under Section 302 IPC read with Section 109 IPC
respectively and the sentence of life imprisonment awarded to each of
them is confirmed. Criminal Appeal No.413 of 2012 preferred by Joseph
(A11) is dismissed. Sahayam (A3) and Joseph (A11) are directed to
surrender to serve their remaining sentence.
24. Conviction of accused Nos. 4 to 10 [Selvam (A4), Antony Innasi
Page No.15 of 17
(A5), Charles (A6), Jerone (A7), Edwinson (A8), Raj (A9) and
Elizabethan (A10)] under Section 302 IPC read with Section 149 IPC is
set aside and they are acquitted of the same. So far as conviction of
Accused Nos. 4 to 10 for other offences and the sentence imposed upon
each of them, the same is modified as indicated above and accordingly,
appeals are partly allowed. Accused Nos. 4 to 10 have already
undergone the sentence for more than six years, they need not
surrender. Their bail bonds stand discharged.
…….…………...………J.
 [RANJAN GOGOI]
…………….……………J.
 [R. BANUMATHI]
New Delhi;
December 14, 2017
Page No.16 of 17
ITEM NO.1504 COURT NO.3 SECTION II-C
[FOR JUDGMENT]
 S U P R E M E C O U R T O F I N D I A
 RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(S). 413/2012
JOSEPH APPELLANT(S)
 VERSUS
STATE REP. BY INSPECTOR OF POLICE RESPONDENT(S)
WITH
CRL.A. NO. 585/2013 (II-C)
CRL.A. NO. 662/2016 (II-C)
Date : 14-12-2017 These appeals were called on for pronouncement of
judgment today.
For parties:
Mr. S. Gowthaman, AOR
Mr. Baij Nath Patel, Adv.
Ms. Sweta, Adv.
Ms. Romila, Adv.
Mr. P. Soma Sundaram, AOR
Mr. P. V. Yogeswaran, AOR
Mr. M. Yogesh Kanna, AOR

Hon'ble Mrs. Justice R. Banumathi
pronounced the judgment of the Bench comprising
Hon'ble Mr. Justice Ranjan Gogoi and Hon’ble
Mrs. Justice R. Banumathi.
The appeals are disposed of in terms of the
signed reportable judgment.
[VINOD LAKHINA] [TAPAN KUMAR CHAKRABORTY]
AR-cum-PS BRANCH OFFICER
[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE]
Page No.17 of 17

whether any case on facts is made out for grant of bail by the accused or not.= No superior Court in hierarchical jurisdiction can issue such direction/mandamus to any subordinate Court commanding them to pass a particular order on any application filed by any party. The judicial independence of every Court in passing the orders in cases is well settled. It cannot be interfered with by any Court including superior Court.- It is for this reason, in our view, such directions were wholly uncalled for and should not have been given. This Court cannot countenance issuing of such direction by the High Court. In our view, at best, the High Court could have made an observation to the effect that the respondent Nos.2 and 3 (accused persons) are at liberty to approach the Sessions Judge for grant of bail and, if any application is filed, it would be decided by the Sessions Judge on its merits and in accordance with law expeditiously but not beyond it.We are, therefore, constrained to set aside the direction given by the High Court to the Sessions Judge to "consider and allow" the bail application made by respondent Nos. 2 & 3 in Sessions Trial Case No.44/2016 on the same day on which it was moved. In view of foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order to the extent indicated above is set aside. The Session Judge would now decide the application for bail, if made by Respondent Nos. 2 and 3, on its merits and in accordance with law, if not so far decided.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2178 OF 2017
(Arising out of S.L.P.(Crl.)No.8030 of 2017)
Madan Mohan ….Appellant(s)
VERSUS
State of Rajasthan & Ors. ….Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed by the Complainant against
the final judgment and order dated 28.04.2017 passed
by the High Court of Judicature for Rajasthan at
Jaipur in S.B. Criminal Revision Petition No.477 of
2017 whereby the High Court partly allowed the
1
criminal revision petition filed by respondent Nos.2
and 3 herein and set aside that part of the order dated
19.11.2016 passed by the Sessions Judge, Sawai
Madhopur in Session Trial No.44/2016 whereby the
Session Judge while allowing the application filed
under Section 193 of the Criminal Procedure Code,
1973 (hereinafter referred to as “the Code”) by the
appellant (Complainant) issued non-bailable warrants
against respondent Nos. 2 & 3 for their arrest.
3) The facts of the case lie in a narrow compass so
also the issue involved in the appeal is short. They,
however, need mention infra.
4) Two accused, namely, Vimlesh Kumar and Janak
Singh are facing trial for the offences punishable
under Sections 120-B, 363, 366, 368, 370 (4) and 376
of the Indian Penal Code, 1860 (hereinafter referred to
as "IPC") read with Section 3/4 and 16/17 of POCSO
Act, in Sessions Trial No.44/2016. It is pending in the
Court of District and Sessions Judge, Sawai
2
Madhopur. The Sessions trial began pursuant to FIR
No.110/2014 filed by the complainant-Madan Mohan
(appellant herein) in Police Station, Piloda. A charge
sheet has since been filed against two accused
mentioned above.
5) The appellant filed an application under Section
193 of the Code in the Sessions Trial complaining
therein that the names of respondent Nos.2 and 3 -
Ashish Meena and Vimal Meena though figured
prominently in all the material documents filed along
with the charge-sheet, yet for no justifiable reasons,
their names were deleted from the charge-sheet
whereas only the names of two accused, i.e., Vimlesh
and Janak Singh were retained to face the trial.
6) The appellant, therefore, prayed that respondent
Nos.2 and 3 be summoned for being arrayed as
accused persons along with Vimlesh Kumar and
Janak Singh to face the trial because, according to
him, respondent Nos.2 and 3 are also involved in the
3
commission of the offence along with other two
accused.
7) The Sessions Judge, by order dated 19.11.2016,
allowed the application finding prima facie case
against respondent Nos.2 and 3 and accordingly
summoned both by issuing non-bailable warrant of
arrest against them.
8) Respondent Nos.2 and 3 felt aggrieved and filed
Criminal Revision under Section 197 of the Code in
the High Court at Rajasthan out of which this appeal
arises. The complainant-appellant herein at whose
instance the order was passed by the Sessions Judge
was, however, not impleaded as party in the revision.
9) By impugned order, the Single Judge allowed the
revision in part and set aside that portion of the order
of the Sessions Judge which had directed issuance of
non-bailable warrant of arrest of respondent Nos.2
and 3 while summoning them. The High Court then
proceeded to issue further direction to respondent
4
Nos.2 and 3 to surrender before the Trial Court and
move the application for their regular bail, which
would be considered and allowed by that Court on the
same day on which it is moved. A further liberty was
granted to respondent Nos. 2 and 3 to raise the
contentions at the time of framing of the charges.
10) It is apposite to quote in verbatim the impugned
order:
“1. Heard learned counsel for the
accused/petitioners.
2. This Criminal Revision Petition has
been preferred on behalf of the
accused/petitioners against the order
dated 19.11.2016 passed by learned
Sessions Judge, Sawai Madhopur
whereby the application filed under
Section 193 Cr.P.C. by the
complainant-Madan Mohan Meena has
been allowed and the cognizance for the
offences punishable under Sections 363
& IPC and Section 5/6 POCSO Act in the
alternative Section 376(2)(g) IPC has
been taken against the petitioners,
Ashish Meena & Vimal Meena, and they
have been called through non-bailable
warrants.
3. During the course of arguments, learned
counsel for the petitioners restricts his
prayer to the extent that the order
summoning the accused/petitioners
5
through non-bailable warrants may be
quashed.
4. This fact is undisputed that after
thorough investigation made by the
Police, charge-sheet for the offences
punishable under Sections 363, 366,
368, 370(4), 376, 120-B IPC and Section
3/4 and 16/17 of the POCSO Act was
filed only against Vimlesh Kumar and
Janak Singh. Accused/petitioners,
Ashish Meena and Vimal Meena, were not
charge-sheeted. Vide order impugned
dated 19.11.2016, petitioners have been
summoned through non-bailable warrants
for the offences mentioned above.
5. Taking all the facts and circumstances of
the case into consideration in totality, it
appears that the order to the extent of
summoning the petitioners, Ashish
Meena and Vimal Meena, through
non-bailable warrants does not appear
justified and is liable to be quashed and
set aside. However, the petitioners,
Ashish Meena and Vimal Meena, are
directed to surrender before the learned
trial Court and to move application for
their regular bail, which will be
considered and allowed by that Court on
the same day on which it is moved.
6. It is also made clear that the
accused/petitioners will be at liberty to
raise the contentions raised before this
Court at the time of framing of charges
before the learned trial Court.
7. The Criminal Revision Petition stands
disposed off accordingly.”
(Emphasis supplied)
6
11) Against the impugned order of the High Court,
the complainant has felt aggrieved and after obtaining
the leave has filed this appeal by way of special leave
in this Court.
12) Heard learned counsel for the parties.
13) Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
constrained to allow the appeal and set aside the order
to the extent mentioned below.
14) In our considered opinion, the Single Judge
seemed to have passed the impugned order without
application of judicial mind inasmuch as he
committed two glaring errors while passing the order.
First, he failed to see that the complainant at whose
instance the Sessions Judge had passed the order and
had allowed his application under Section 193 of the
Code was a necessary party to the criminal revision
along with the State. Therefore, he should have been
impleaded as respondent along with the State in the
7
revision. In other words, the Complainant also had a
right of hearing in the Revision because the order
impugned in the Revision was passed by the Session
Judge on his application. This aspect of the case was,
however, not noticed by the Single Judge.
15) Second and more importantly was that the Single
Judge grossly erred in giving direction to the Sessions
Judge to consider the bail application of respondent
Nos.2 and 3 and “allow” it on the “same day”.
16) In our considered opinion, the High Court had no
jurisdiction to direct the Sessions Judge to "allow" the
application for grant of bail. Indeed, once such
direction had been issued by the High Court then
what was left for the Sessions Judge to decide except
to follow the directions of the High Court and grant
bail to respondent Nos. 2 and 3. In other words, in
compliance to the mandatory directions issued by the
High Court, the Sessions Judge had no jurisdiction to
reject the bail application but to allow it.
8
17) No superior Court in hierarchical jurisdiction can
issue such direction/mandamus to any subordinate
Court commanding them to pass a particular order on
any application filed by any party. The judicial
independence of every Court in passing the orders in
cases is well settled. It cannot be interfered with by
any Court including superior Court.
18) When an order is passed, it can be questioned by
the aggrieved party in appeal or revision, as the case
may be, to the superior Court. It is then for the
Appellate/Revisionery Court to decide as to what
orders need to be passed in exercise of its
Appellate/Revisionery jurisdiction. Even while
remanding the case to the subordinate Court, the
Superior Court cannot issue a direction to the
subordinate Court to either “allow” the case or “reject”
it. If any such directions are issued, it would amount
to usurping the powers of that Court and would
amount to interfering in the discretionary powers of
9
the subordinate Court. Such order is, therefore, not
legally sustainable.
19) It is the sole discretion of the Sessions Judge to
find out while hearing the bail application as to
whether any case on facts is made out for grant of bail
by the accused or not. If made out then to grant the
bail and if not made out, to reject the bail. In either
case, i.e., to grant or reject, the Sessions Judge has to
apply his independent judicial mind and accordingly
pass appropriate reasoned order keeping in view the
facts involved in the case and the legal principles
applicable for grant/rejection of the bail. In this case,
the Single Judge failed to keep in his mind this legal
principle.
20) It is for this reason, in our view, such directions
were wholly uncalled for and should not have been
given. This Court cannot countenance issuing of such
direction by the High Court.
10
21) In our view, at best, the High Court could have
made an observation to the effect that the respondent
Nos.2 and 3 (accused persons) are at liberty to
approach the Sessions Judge for grant of bail and, if
any application is filed, it would be decided by the
Sessions Judge on its merits and in accordance with
law expeditiously but not beyond it.
22) We are, therefore, constrained to set aside the
direction given by the High Court to the Sessions
Judge to "consider and allow" the bail application
made by respondent Nos. 2 & 3 in Sessions Trial Case
No.44/2016 on the same day on which it was moved.
23) So far as the direction by which cognizance of the
case against respondent Nos.2 and 3 was taken by the
Sessions Judge, the Single Judge has upheld it. It is
not questioned here. In the light of this, the
respondent Nos.2 and 3 have to submit themselves to
the jurisdiction of the Sessions Judge and raise the
pleas which are available to them in law.
11
24) In view of foregoing discussion, the appeal
succeeds and is accordingly allowed. The impugned
order to the extent indicated above is set aside. The
Session Judge would now decide the application for
bail, if made by Respondent Nos. 2 and 3, on its
merits and in accordance with law, if not so far
decided.


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


...……..................................J.
 [ABHAY MANOHAR SAPRE]
New Delhi;
December 14, 2017
12

the appellants are not entitled for appointment, since their claim is highly belated. = to appoint the appellants to the post of Excise and Taxation Inspector, within a period of one month from today, without disturbing any appointments already made, while applying the principle of horizontal reservation. In order to avoid any future litigation, we make it clear that the appellants shall be entitled to seniority only from the date of joining the service.

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 21848-21850/2017
(ARISING FROM SLP (C) NOS.1842-1844 OF 2017)
MANISH KATHURIA AND OTHERS ETC. ETC. APPELLANT(S)
 VERSUS
STATE OF PUNJAB AND OTHERS ETC. ETC. RESPONDENT(S)
WITH
CIVIL APPEAL NO(S). 21851/2017
(ARISING FROM SLP (C) NO.11010 OF 2017)
J U D G M E N T
KURIAN, J.
Leave granted.
2. I.A. No.68830/2017 is allowed, in terms of the
prayer made.
3. The appellants are before this Court, aggrieved
by the judgment dated 30.09.2016 passed by the High
Court of Punjab and Haryana at Chandigarh in LPA
Nos.1395, 1398, 1400 and 1396 of 2015. The High
Court took the stand that the appellants are not
entitled for appointment, since their claim is highly
belated.
4. However, the fact remains that the appellants had
been before this Court seeking impleadment when the
special leave petitions were pending before this
1
Court. It was this Court which relegated them to
pursue their remedy before the High Court. True,
some of the appellants had already filed special
leave petition(s).
5. Be that as it may, when this matter came up for
hearing before this Court on 07.12.2017, we directed
the counsel for the State of Punjab to get
instruction as to the availability of the vacancies
and as to whether the appellants are otherwise
qualified, going by the Report of the Committee
appointed by the High Court. This order was passed on
the basis of the information that there were unfilled
vacancies available as against notified vacancies in
the post of Excise and Taxation Inspector.
6. Learned counsel for the State of Punjab has made
available a written instruction to the effect that
there are 12 vacancies as against the 1999
Notification (SC-05, BC-03, ESM-3 and Gen-03).
However, it is also not disputed that as of now,
there are 76 vacancies available in various
categories as can be seen from the affidavit filed by
the State.
7. Having heard the learned counsel on both the
sides and having regard to the fact that the
vacancies are available as of now to accommodate the
2
appellants and also having regard to the fact that
the appellants have been found otherwise qualified by
the Committee appointed by the High Court, we are of
the view that this is a fit case for invocation of
our jurisdiction under Article 142 of the
Constitution of India for doing complete justice.
8. Accordingly, these appeals are disposed of with a
direction to the respondents to appoint the
appellants to the post of Excise and Taxation
Inspector, within a period of one month from today,
without disturbing any appointments already made,
while applying the principle of horizontal
reservation. In order to avoid any future
litigation, we make it clear that the appellants
shall be entitled to seniority only from the date of
joining the service.
9. We make it clear that though the appellants have
filed their affidavits regarding qualification in
computer application, it will be open to the
appointing authority to verify that qualification at
the time of appointment.
10. We also make it clear that this judgment is
rendered in the peculiar facts of this case and it
should not be quoted as a precedent.
11. The appeals are, accordingly, disposed of.
3
12. Pending applications, if any, shall stand
disposed of.
13. There shall be no orders as to costs.
.......................J.
 [KURIAN JOSEPH]
.......................J.
 [AMITAVA ROY]
NEW DELHI;
DECEMBER 13, 2017.
4

declaration that the provisions of the Standards of Weights and Measures Act, 1976, the Standards of Weights and Measures (Enforcement) Act, 1985 and the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 are not applicable to services rendered in the premises of hotels/restaurants. = We are, therefore, of the view that neither the Standards of Weights and Measures Act, 1976 read with the enactment of 1985, or the Legal Metrology Act, 2009, would apply so as to interdict the sale of mineral water in hotels and restaurants at prices which are above the MRP.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 21790 OF 2017
(Arising out of S.L.P. (C) No. 28685/2015)
FEDERATION OF HOTEL AND RESTAURANT
ASSOCIATIONS OF INDIA Appellant
 VERSUS
UNION OF INDIA AND ORS. Respondents
WITH
CIVIL APPEAL NO. 21791 OF 2017
(Arising out of S.L.P. (C) No. 27629/2015)
J U D G M E N T
R.F. Nariman, J.
1) Leave granted.
2) The present appeals arise out of Writ Petition (C) No.
6517/2003 filed by the Federation of Hotel and Restaurant
Associations of India in the High Court of Delhi, seeking a
declaration that the provisions of the Standards of Weights and
Measures Act, 1976, the Standards of Weights and Measures
(Enforcement) Act, 1985 and the Standards of Weights and
Measures (Packaged Commodities) Rules, 1977 are not applicable
2
to services rendered in the premises of hotels/restaurants.
3) The appellant's main concern was that the Controller of
Weights and Measures was seeking to proceed against the hotels
and restaurants of the appellant-Association for charging a price
higher than the printed Maximum Retail Price (“MRP” in short) for
supply of packaged water bottles during services provided to their
customers while in the hotels and restaurants. The appellants
plead in the Writ Petition that the transaction consisting
predominantly of a service, and not of a sale of drinking water,
consisted of a composite charge which included incidental charges
for food, drinks etc. The challenge in the Writ Petition resulted in a
judgment by the learned Single Judge dated 05.03.2007. The
judgment of the learned Single Judge referred to and relied upon
the decisions in The State of Punjab vs. M/s. Associated Hotels
of India Ltd. (1972) 1 SCC 472, Northern India Caterers (India)
Ltd. vs. Lt. Governor of Delhi, [1979] 1 SCR 557 and the review
judgment in the latter case reported in (1980) 2 SCC 167. After
discussing these judgments in detail, and considering the
statement of objects and reasons of the Standards of Weights and
Measures Act, the learned Single Judge finally held:
“16. In the above analysis I hold that charging prices for
mineral water in excess of MRP printed on the packaging,
during the service of customers in hotels and restaurants does
not violate any of the provisions of the SWM Act as this does
3
not constitute a sale or transfer of these commodities by the
hotelier or Restaurateur to its customers. The customer does
not enter a hotel or a restaurant to make a simple purchase of
these commodities. It may well be that a client would order
nothing beyond a bottle of water or a beverage, but his direct
purpose in doing so would clearly travel to enjoying the
ambience available therein and incidentally to the ordering of
any article for consumption. Can there by any justifiable
reason for the Court or Commission to interdict the sale of
bottled mineral water other than at a certain price, and ignore
the relatively exorbitant charge for a cup of tea or coffee. The
response to this rhetorical query cannot but be in the negative.
Although the vires of Rule 23 have been assailed, I do not find
it necessary to answer that challenge since the provision
relates to sales between dealers and neither the hotels and
restaurants of the one part and customers of the other falls
within this categorization.”
4) In a Letters Patent Appeal filed before the Delhi High Court, by
a judgment dated 11.02.2015, the Division Bench recorded that the
counsel for the writ petitioners was agreeable to disposing of the
appeals in a particular manner and accordingly, the appeals were
disposed of in such manner. Paras 16 & 17 of this judgment are
set out herein below:
“16. The counsel for the writ petitioners is agreeable to our
disposing of these appeals with observations that the judgment
of the learned Single Judge shall not come in the way of the
appellant enforcing the provisions of the new Act even if
identical or similar to the old Act and it being left to be
adjudicated in the proceedings if any initiated under the new Act
whether hotels/restaurants, are entitled to do so or not.
4
17. We accordingly dispose of these appeals in following
terms:
A. Owing to the change in law, there is no need to set aside or
affirm the judgment of the learned Single Judge.
B. However the question of law adjudicated by the learned
Single Judge is left open for adjudication in any fresh
proceeding under the new law and the judgment of the learned
Single Judge shall not be a precedent in any such adjudication
even if the concerned provisions of the old and the new law are
identical/similar.
C. The appellant shall however not be entitled to initiate any
proceeding/prosecution for violation of the old law in this
respect, even if notices of such violation were issued, as in our
opinion, considering the nature of offence, the long time which
has elapsed and the doubt which has arisen whether such
prosecution will be within the prescribed time, it is not deemed
expedient that the state resources in this regard, which are
already strained, be expended thereon.”
5) A Review Petition was then filed against the aforesaid
judgment which met with no success, in that the review was
dismissed by an order dated 15.05.2015, in which it was pointed
out that the practice of review being sought on a ground which is
not supported by the original advocate but by a different advocate
has been deprecated, and hence the review was dismissed.
6) Mr. K.V. Viswanathan, learned Senior Counsel, appearing on
behalf of the appellant before us, has argued that both the original
as well as the review order impact his clients in that the judgment
of the learned Single Judge, which is a detailed and
5
comprehensive judgment dealing with all the law points at hand
has been brushed aside, and the result is that any de novo
proceeding under the Legal Metrology Act, 2009, which has since
replaced the two Acts of 1976 and 1985, would transgress the
rights of the appellant's clients as this has to be gone into de novo.
According to the learned Senior Counsel, the concession that is
made cannot possibly bind the appellant as not only is it a
concession on a point of law but on a concession made on
jurisdiction, and according to the learned Senior Counsel once it is
conceded, as will be come clear from a reading of the Legal
Metrology Act, that the position under the two statutes, namely, the
2009 Act as well as the repealed Acts is identical, then the Single
Judge's judgment, if it is otherwise good in law, would require to be
confirmed. According to the learned Senior Counsel, having
regard to the judgments of this Court, and having regard to the
changes made by the Constitution (forty-sixth Amendment) Act,
contained in Article 366 (29-A), and further having regard to the
fact that despite such changes having been made, no such change
as was made by the Constitutional amendment has been made in
the definition of “sale” which continues to be the same under the
2009 Act as it was under the 1976 Act, the Division Bench ought to
have affirmed the judgment of the learned Single Judge and
6
dismissed the appeal.
7) Mr. Ajit Kumar Sinha, learned Senior Counsel, appearing on
behalf of the Union of India has argued before us that we should
not go into the jurisdictional question at all in view of the statement
of counsel made for the writ petitioner before the learned Division
Bench. Alternatively, he argued that if for some reason we are to
go into the merits of the case, despite the fact that the 2009 Act
admittedly does not make any change in the earlier position so far
as the definition of “sale” is concerned, yet a reading of the
definition of “pre-packaged commodity” contained in Section 2(l) of
the 2009 Act read with Rule 3 explanation (1) of the Rules made
thereunder would show that hotels such as the appellant's are
within the reach of the statute and the rules made thereunder. He
also referred us to Section 57 of the 2009 Act, which repeals the
1976 Act, and submitted that transactions made under the old Act
would continue as a result. The question that therefore arises in
the present case is: given the fact that the Legal Metrology Act,
2009 continues with the same definition of “sale” as was contained
in the 1976 Act, whether the judgment of the learned Single Judge
can be said to be correct in law and applicable qua the 2009 Act.
8) A consideration of the statement of objects and reasons of the
1976 Act would show that the said Act is concerned with a
7
provision for consumer protection by which the proper indication
on the package of net quantity by weight etc. is contained therein
and the price of the package is also indicated. Further, indication
of date of manufacture and date of expiry would also be marked for
appropriate products. The relevant portion of the said statement of
objects and reasons is set out herein below:
“5. The Bill further provides for consumer protection in respect
of packaged commodities by providing, in pursuance of the
recommendations of the OIML, for the proper indication on the
package of net quantity by weight, measures or number, the
identity of the commodity contained therein, name of the
manufacturer, and what is very important, the price of the
package. It is also proposed that commodities commonly used
by people should be packed in rationalised standard quantities
by weight, measure or number, so as to facilitate the purchase
and comparison of price by the people. Further, indication of
date of manufacture and date of expiry would also be marked
for appropriate products.
6. A further provision for consumer protection is the approved
models of weights, measures and weighing and measuring
instruments, which is recommended by the OIML, draft law.
The scientific evaluation of the performance accuracy and
dependability of weights, measures etc. would enable the
consumer to buy his requirements with greater confidence
about accuracy and also give industries the facility to use more
accurate measuring instruments in their production control and
enable the scientists to measure accurately to quantities
involved in their researches. All these benefits will contribute to
national development.
8
7. The main features of the Bill are, -
(a) establishment of the standards of weights and measures,
based on the SI units, as adopted by the CGPM and
recognised by the OIML;
(b) establishment of the standards of numeration, based on the
international form of Indian numerals;
(c) regulation of inter-State trade and commerce in weights and
measures and commodities sold, distributed or supplied by
weight or measure;
(d) regulation of inter-State trade and commerce in
commodities sold, supplied or distributed in packaged form;
(e) control and regulation of export and import of weights and
measures and commodities in packaged form;
(f) approval (before manufacture) of models of weighing and
measuring instruments intended to be manufactured after the
commencement of the proposed legislation;
(g) establishment of an Indian Institute of Legal Metrology for
imparting training in legal metrology to inspectors and other
persons;
(h) surveys and collection of statistics for facilitating planning
and enforcement of the proposed legislation;
(i) punishment for offences against the proposed legislation.”
9) We are concerned primarily with the definition of “sale” that is
contained in the 1976 Act as it then stood. Sale is defined as
follows:
“2(v) “sale”, with its grammatical variations and cognate
expressions, means transfer of property in any weight,
measure or other goods by one person to another for cash or
for deferred payment or for any other valuable consideration,
and includes a transfer of any weight, measure or other
goods on the hire-purchase system or any other system of
payment by instalments, but does not include a mortgage or
9
hypothecation of, or a charge or pledge on, such weight,
measure or other goods;”
It will be clear on a cursory reading of the said definition that “sale”
means transfer of property in goods by one person to another for
cash or for deferred payment or for any other valuable
consideration. It will be noticed that despite this Court's judgment
in M/s. Associated Hotels of India Ltd. (supra), which is a
judgment of the year 1972, Parliament has chosen to adopt the
definition of sale which does not include or split up sales of goods
from services in composite contracts. Also, a reading of the
various penal provisions that are contained in the Act, starting with
Section 50 would show that there is no penalty for selling above
MRP in hotels and/or restaurants.
10) As has been stated in the trilogy of judgments in M/s.
Associated Hotels of India Ltd. (supra) and the two Northern
India Caterers (India) Ltd. (supra), it is clear that when “sale” of
food and drinks takes place in hotels and restaurants, there is
really one indivisible contract of service coupled incidentally with
sale of food and drinks. Since it is not possible to divide the
“service element”, which is the dominant element, from the “sale
element”, it is clear that such composite contracts cannot be the
subject-matter of sales tax legislation, as was held in those
judgments.
10
11) Bearing these judgments in mind, Parliament amended the
Constitution and introduced the Constitution (forty-sixth
Amendment) Act, by which it introduced Article 366 (29-A).
Sub-clause (f), with which we are directly concerned, reads as
follows:-
“366. (29A) (f) a tax on the supply, by way of or as part of any
service or in any other manner whatsoever, of goods, being
food or any other article for human consumption or any drink
(whether or not intoxicating), where such supply or service, is
for cash, deferred payment or other valuable consideration,
and such transfer, delivery or supply of any goods shall be
deemed to be a sale of those goods by the person making the
transfer, delivery or supply and a purchase of those goods by
the person to whom such transfer, delivery or supply is made.”
A reading of the constitutional amendment would show that
supply by way of or as part of any service of food or other article
for human consumption is now deemed to be a sale of goods by
the person making the transfer, delivery or supply.
12) What is interesting to note is that despite the fact that the
constitutional amendment was made way-back in the year 1982,
the 1976 Act was not amended so as to incorporate the definition
of sale contained therein. What is of greater importance is to
appreciate that when the 2009 Act has replaced the 1976 Act,
again the definition of “sale” contained in the 2009 Act reads as
follows:
11
“(r) “sale”, with its grammatical variations and cognate
expressions, means transfer of property in any weight, measure
or other goods by one person to another for cash or for
deferred payment or for any other valuable consideration and
includes a transfer of any weight, measure or other goods on
the hire-purchase system or any other system of payment by
instalments, but does not include a mortgage or hypothecation
of , or a charge or pledge on, such weight, measure or other
goods;
As is clear from the statement of objects and reasons for the 2009
Act, the object of the said Act was only to do away with the 1976
and 1985 Acts so as to combine the said provisions into one
enactment so as to make the law simple, ensure accountability,
and bring in transparency. The statement of objects and reasons
for the 2009 Act reads as follows:-
“STATEMENT OF OBJECTS AND REASONS
In India, uniform standards of weights and measures based
on the metric system, were established in the year 1956, which
were revised in the year 1976 with a view to give effect to the
international system of units. Apart from it, the Standards of
Weights and Measures Act, 1976 provides for establishing
Standards of Weights and Measures, regulation of inter-State
trade or commerce in weights and measures and other goods
which are sold by weight, measure or number. In the year
1985, the Standards of Weights and Measures (Enforcement)
Act, 1985 was enacted for enforcement of standards of weights
and measures established by or under the 1976 Act.
2. The advancement of technology has necessitated the review
of above mentioned enactments to make them simple,
eliminate obsolete regulations, ensure accountability and bring
12
transparency.
3. It has become imperative to combine the provisions of the
existing two Acts to get rid of anomalies and make the
provisions simple. It has also become necessary to keep the
regulation pragmatic to the extent required for protecting the
interest of consumers and at the same time keep the industry
free from undue interference. It has also become necessary to
recognise certain “Government approved Test Centres” which
will be empowered to verify prescribed weights or measure.
4. The Bill, inter alia, provides for,-
(a) regulation of weight or measure used in transaction or for
protection;
(b) approval of model or weight or measure;
(c) verification of prescribed weight or measure by Government
approved Test Centre;
(d) prescribing qualification of legal metrology officers
appointed by the Central Government or State Government;
(e) exempting regulation of weight or measure or other goods
meant for export;
(f) levy of fee for various services;
(g) nomination of a Director by a company who will be
responsible for complying with the provisions of the enactment;
(h) penalty for offences and compounding of offences;
(I) appeal against decision of various authorities; and
(j) empowering the Central Government to make rules for
enforcing the provisions of the enactment.”
13) On a reading of the said Act and the Rules made thereunder, it
is clear that the position qua “sale” remains exactly the same as
that contained in the 1976 Act, which now stands repealed. This
being the case, we are of the view that the learned Single Judge
13
was absolutely correct in his conclusion that despite the
constitutional amendment having been passed, the definition of
“sale” contained both in the 1976 Act and now in the 2009 Act
would go to show that composite indivisible agreements for supply
of services and food and drinks would not come within the purview
of either enactment, and that this is for the very good reason that
the object for both these enactments is something quite different -
the object being, as has been pointed out above, to standardize
weights and measures for defined goods so that quantities that are
supplied are thus mentioned on the package and that MRPs are
mentioned so that there is one uniform price at which such goods
are sold.
14) Mr. Sinha, learned Senior Counsel, however, has argued
before us that given the fact that learned Senior Counsel on behalf
of the appellant had made a concession before the Division Bench,
we should not interfere with the said judgment. It is settled law that
any such concession made on a question relating to jurisdiction to
proceed further, particularly qua criminal prosecutions, does not
bind the party in question. It is of utmost importance for all to know
exactly how they stand in such cases. Also, Mr. Sinha's reliance
upon Section 2(l) of the 2009 Act read with Rule 3 of the Rules
does not take us very much further. Section 2(l) of the 2009 Act
14
reads as follows:-
“(l) “pre-packaged commodity” means a commodity which
without the purchaser being present is placed in a package of
whatever nature, whether sealed or not, so that the product
contained therein has a pre-determined quantity;”
15) A cursory reading of the aforesaid definition would show that it
refers only to the fact that a pre-packaged commodity should have
a pre-determined quantity as stated in the definition section. It has
no bearing whatsoever on the issue before us. Equally, reliance
upon Rule 3 of the 2011 Rules again does not lead us anywhere.
Rule 3 of the said Rules read as follows:-
“3. Applicability of the Chapter.- The provisions of this Chapter
shall not apply to,-
(a) packages of commodities containing quantity of more than
25 kg or 25 litre excluding cement and fertilizer sold in bags up
to 50 kg; and
(b) packaged commodities meant for industrial consumers or
institutional consumers.
Explanation.- For the purpose of this rule,-
(i) “institutional consumer” means the institutional consumer like
transportation, Airways, Railways, Hotels, Hospitals or any
other service institutions who buy packaged commodities
directly from the manufacturer for use by that institution;
(ii) “industrial consumer” means the industrial consumer who
buy packaged commodities directly from the manufacturer for
use by that industry.”
16) Mr. Sinha relied upon the definition of institutional consumer
contained in explanation (i) in order to show that hotels, in
15
particular, would be under the coverage of the Act read with the
Rules. First and foremost, a reading of the opening of Rule 3
would show that the provisions of the Chapter would not apply to
packaged commodities meant for institutional consumers such as
hotels. Also, the Rules cannot take us very much further when it
has already been held by us that the Act itself would not apply for
the reasons given herein above.
17) We are, therefore, of the view that neither the Standards of
Weights and Measures Act, 1976 read with the enactment of 1985,
or the Legal Metrology Act, 2009, would apply so as to interdict the
sale of mineral water in hotels and restaurants at prices which are
above the MRP.
18) The appeals are accordingly allowed and the judgments dated
11.02.2015 and 15.05.2015 of the High Court are set aside.
 .…………………………J.
(R.F. Nariman)
…………………………J.
(Navin Sinha)
New Delhi;
December 12, 2017