courts cannot issue mandatory directions which breach the independence of subordinate courts. Therefore, such circuitous method undertaken by the respondent in obtaining a bail is a gross abuse of the court process undertaken in bad faith. - LACHHMAN DASS …APPELLANT (S) VERSUS RESHAM CHAND KALER AND ANR. …RESPONDENT (S)

1
REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.161 of 2018
(Arising out of SLP (Crl.) No. 3168/2017)
LACHHMAN DASS …APPELLANT (S)
VERSUS
RESHAM CHAND KALER AND ANR. …RESPONDENT (S)
With
Criminal Appeal No.162 of 2018
(Arising out of SLP (Crl.) No. 3167/2017)
LACHHMAN DASS …APPELLANT (S)
VERSUS
MOHINDER PAL CLAIR & ANR. …RESPONDENT (S)
Criminal Appeal No.163 of 2018
(Arising out of SLP (Crl.) No. 3169/2017)
LACHHMAN DASS …APPELLANT (S)
VERSUS
SUKHWINDER SINGH & ANR. …RESPONDENT (S)
 J U D G M E N T
2
 N . V . R A M A N A , J .
Criminal Appeal No.161 of 2018 @ SLP (Crl.) No. 3168 of 2017
1. Leave granted.
2. This case arises out of an order dated 19.01.2017, passed by the
High Court of Punjab and Haryana, at Chandigarh, in
CRM-M-36539/2016, wherein the High Court has granted
regular bail to the respondent no.1 in FIR 205/2015, dated
05.11.2015, filed under Sections 302, 307, 324, 148 & 149 of
Indian Penal Code of 1860 [hereinafter ‘IPC’ for brevity] and
Sections 25, 27, 54 & 59 of the Arms Act, 1959.
3. The facts as alleged in the FIR portray that, on 05.11.2015 at
about 5 to 5.15p.m., when complainant’s brother (Harbilas) and
one Shingar Chand, were present near the crime scene, Resham
Chand Kaler (respondent no. 1—an NRI) accompanied by Kulbir
Singh and various other persons, arrived there and started
quarrelling with Harbilas and Shingar Chand. In this incident
Kulbir Singh is alleged to have fired a shot from his revolver at
Shingar Chand. Further, it is alleged that, complainant as well
his family members sustained various injuries inflicted by armed
cohorts accompanying Resham Chand Kaler (respondent no. 1
herein).
4. After completion of the investigation Sections 326 and 120B of
3
IPC were added in addition to those sections reported under the
FIR and a final report was filed by the concerned Police Officer
against the accused persons including respondent no. 1. It is
brought to our notice that the aforesaid challan was submitted
before the Sessions Court on 22.03.2016 and the trial is pending.
5. The respondent no. 1 first approached the trial court in Bail
Application 3018/2016, wherein the trial court vide order dated
14.09.2016, rejected the bail application on the ground that,
there were serious allegations as to the culpability of respondent
no. 1 and the nature of the offences were serious which was
committed on broad daylight.
6. Aggrieved, by the rejection of bail by the trial court, respondent
no. 1 approached the High Court of Punjab and Haryana,
Chandigarh, in CRM-M-36539/2016, wherein the High Court
has granted bail on usual terms to respondent no. 1. It would be
apt to reduce the reasoning of the High Court“Heard.
Notice of motion.
On asking of the Court, Mr. Ashish Sanghi, DAG
Punjab, who is present in the Court accepts
notice and submits that intimation by Registry
informing of fixation of the petition has already
been received and record of the case is available
with him.
Allegation against the petitioner is that he
was main conspirator in the occurrence, in
which Shingara Chand was given fire shot
injury, who died at the spot while
4
complainant and his nephew Jiwan Kaler
were caused injuries with sword.
It is a case of land dispute. The petitioner
was arrested in this case on 06.11.2015 and
the challan has already been presented. No
injury has been attributed to petitioner.
Without expressing any opinion on merits
of the case and keeping in view the fact
that conclusion of trial will take
considerably long time, the present petition is
allowed. Petitioner-Resham Chand Kaler is
ordered to be released on regular bail on
furnishing bail bond and surety bond to the
satisfaction of concerned trial court/Chief Judicial
Magistrate/Duty Magistrate, subject to following
terms:-
a) The petitioner shall comply with the conditions
mentioned in Section 437(3) CrPC.
b) In the event of his absence on any date of hearing, the
benefit of bail allowed to the petitioner shall stand
withdrawn. The trial court shall be competent to cancel
his bail bond and surety bond and proceed to procure his
presence in accordance with law. In that eventuality the
petitioner shall have to apply for bail afresh.
c) He shall not leave the country without the previous
permission of the Court.”
(emphasis supplied)
7. Aggrieved by the order of the High Court granting bail to the
respondent no.1, the appellant has approached this Court by
way of special leave petition.
8. Learned counsel for the appellant (complainant) submits that the
nature of crime is very serious and the High Court without
application of mind, casually granted bail to respondent no.1
even after observing that there were serious allegations of
criminal conspiracy in accompanying a habitual criminal (Kulbir
5
Singh) who is alleged of being an accused in nineteen criminal
cases including thirteen murder cases. It is further contended
that the evidence on record clearly establishes the fact of
respondent no. 1 hatching criminal conspiracy and in that
pursuit of the same accompanied the accused-Kulbir Singh to
the place of incident where Shingar Chand was shot dead. The
criminal conspiracy between respondent no. 1 and Kulbir Singh
in accompanying the latter to the scene of crime cannot be
ignored, more so when Section 149 of IPC was invoked. Learned
counsel finally submitted that there is also a likelihood of the
accused—respondent no.1 tampering with the process of
investigation, but the High Court granted bail to the accused
ignoring the established principles of criminal jurisprudence and
hence the order of High Court needs be set aside.
9. Learned counsel for the respondent no. 1 submits that he is a
British citizen and the genesis of the crime is a land dispute. The
involvement of respondent no. 1 in the alleged conspiracy is a
matter of trial and this court should assess only prima facie
culpability, concerning the involvement of respondent no. 1. He
further submitted that this court should take into consideration
the difference between the rejection of a bail and cancellation of a
bail while analyzing the instant case.
10.Learned counsel appearing on behalf of the State, while fully
6
supporting the complainant’s case, agrees with the contention
that the bail was granted against established tenets under the
bail jurisprudence. Learned counsel of the State has referred a
detailed counter affidavit for the perusal of the Court and has
submitted that the accused Kulbir Singh was a notorious
criminal who was extradited from USA and he is a henchman of
respondent no. 1 with whose support the accused persons
attacked the complainant party to grab their land. The High
Court has ignored all these material facts and has wrongly
granted bail to the respondent no. 1.
11.Having heard the learned counsel appearing on behalf of the
parties and perusing all the material available on record,
particularly the compact disk (CD) filed with the petition, we are
of the considered opinion that a prima facie case is made out
against the respondent—accused, as the group of persons are
seen committing the offence using deadly weapons and sticks.
The seriousness and gravity of the offence can be clearly
observed from the CD. However, aforesaid observations must not
be construed as findings on merits. Though the respondent no. 1
is not a citizen of this country (British national), yet the fact
remains that he along with other persons has indulged in the
criminal activity. The case of the prosecution mainly revolves
around him as he is alleged to be the kingpin of the criminal
7
conspiracy which demands his custodial interrogation. In such
circumstances, it is unfortunate that the High Court did not
appreciate the facts of the case with prudent legal perception. We
see no reason to accord any special consideration for respondent
no.1 by virtue of a simple fact that he is a citizen of different
country. The law under Section 439 of Cr.P.C is very clear and in
the eyes of the law every accused is the same irrespective of their
nationality.
12.Apart from the above, it is also important to note the legal
principles governing this case. We make it clear that this case is
not an appeal seeking cancellation of bail in any sense rather,
this case calls for the legal sustainability of the impugned order
granting bail to the accused-respondent herein. The difference
between the cancellation of the bail and a legal challenge to an
order granting bail for non-consideration of material available on
record is a settled proposition. To clarify, there is no ground
pleaded herein that a supervening event breaching bail
conditions is raised. [refer State through C.B.I. vs. Amarmani
Tripathi, (2005) 8 SCC 21; Prakash Kadam v. Ramprasad
Vishwanath Gupta, (2011) 6 SCC 189].
13.Having cleared this confusion, we may clarify, though seriously
urged by the counsel appearing on behalf of the respondent no.1,
that there is no warrant for cancellation of bail as there has been
8
no breach of bail condition, yet such submission is not
countenanced under the law.
14.For all the aforesaid reasons, the appeal is allowed. We,
therefore, set aside the order of the High Court granting bail to
the respondent no. 1 and direct the concerned police authorities
to take the respondent no. 1 into custody immediately.
Criminal Appeal No.162 of 2018 @ SLP (Crl.) No. 3167/17
15.Leave granted.
16.We have perused the impugned judgment which granted bail to
the respondent in this SLP on the basis of parity with Resham
Chand Kaler (respondent no. 1 in SLP(Crl) No. 3168 of 2017). As
we have already set aside the bail of Resham Chand Kaler,
thereby effacing the footing on which the grant of bail by the
High Court stood. Otherwise also, we do not think that this case
is fit for extending the liberty of bail for the reasons as provided
above. Therefore, we allow the appeal and set aside the impugned
order passed by the High Court granting bail to respondent no. 1
herein.
Criminal Appeal No.163 of 2018 @ SLP (Crl.) No. 3169 of 2017
17.Leave granted.
18.It is stated by the learned counsel appearing for the respondent
no. 1 in this SLP that the case of the present-respondent is
9
distinguishable from the rest of the accused in the above two
Criminal Appeals. He further states that his name does not
appear in the FIR and the police investigation did not reveal any
role attributable to the present-respondent, it was only after
recording of the evidence that the court summoned the
present-respondent. Therefore, he should be extended the liberty
of bail as granted by the High Court.
19.Per contra, learned counsel for the appellant drew our attention
to a series of orders passed by the courts below which makes it
apparent that the bail was granted on a rhetorical footing without
there being any application of mind.
20.It would be useful to note certain orders passed by the
Courts below in order to understand the non-application of mind.
21.On 06.10.2016, the Sessions Court rejected the first anticipatory
bail application of the respondent in this case taking into
consideration the gravity and seriousness of the offence.
22.Thereafter, the respondent herein filed an anticipatory bail
application in the High Court being CRM-M No.40457 of 2016. It
is to be noted that the High Court granted interim protection in
the following manner“Learned
counsel for the petitioner states that the
petitioner has not been named in the FIR and the
police has found the petitioner innocent. Thus, he
was not challaned. It is only on the basis of
statement of Jiwan Kaler, the name of the petitioner
10
has cropped up. He further states that even though
no role has been attributed to the petitioner, but the
petitioner is ready to face the trial.
Notice of motion.
At this stage, Mr. Anil Kumar Spehia, Advocate
has put in appearance on behalf of the complainant.
Vakalatnama produced on behalf of the complainant
in the Court today, is taken on record.
List on 13.02.2017.
Meanwhile, in case the petitioner surrenders
before the trial Court within one week from today,
he shall be admitted on bail on his furnishing bail
bonds and surety bonds to the satisfaction of the
 trial Court”.
(emphasis supplied)
23.Thereafter, respondent herein made an application, for surrender
and bail as per the order of the High Court dated 11.11.2016,
before the trial court. The trial court by order dated 16.11.2016,
passed the following order granting bail“Application
for surrender and bail received by
entrustment, it be checked and registered, along
with it copy of order dated November 16,2016
passed by the Hon’ble High Court in
CRM-M-40457 of 2016, vide which the applicant
Sukhwinder Singh have been ordered to be
released on bail to the satisfaction of Trial Court.
the order’s have been got verified through Ahlmad
of this Court. In view of the order’s of the High
Court, applicant is ordered to be released on bail
on (illegible).
Shall not leave India without the permission of the
Court.
He shall appear in court on each and every date of
hearing
Bail/surety bonds accepted and attested. Papers of
bail application be attached with the file of the trial
pending in this court.”
11
(emphasis supplied)
24.Again, when the matter was listed before the High Court in
CRM-M No.40457 of 2016, which was pending before it, was
dismissed as being infructuous as under“Learned
Counsel for the petitioner states that in
terms of order dated 11.11.2016 passed by this
Court, the petitioner has surrendered before the
trial court. Thereafter, the petitioner has been
ordered to be released on bail.
Accordingly, this petition praying for grant of
anticipatory bail the petitioner, has been rendered
infructuous.
Dismissed as having become infructuous.”
(emphasis supplied)
25.It is unfortunate to note that the order of the High Court on the
first instance clearly points out that it has virtually directed the
course of action to be undertaken by the subordinate court. It is
not expected from the High Court to pass such mandatory orders
commanding the subordinate court to compulsorily grant bail.
Recently, this court on similar facts in Madan Mohan v. State
of Rajasthan1
, has laid down that courts cannot issue
mandatory directions which breach the independence of
subordinate courts. Therefore, such circuitous method
undertaken by the respondent in obtaining a bail is a gross
abuse of the court process undertaken in bad faith. Moreover,
our attention is drawn to the fact that he was declared as a
1 Criminal Appeal No. 2178 of 2017.
12
proclaimed offender before the grant of bail, which was not taken
into consideration by the High Court. In light of the above, we
allow the appeal, set aside the order of the High Court and direct
the concerned authorities to take the respondent no. 1 herein
into custody forthwith.
……………………….J.
 (N. V. RAMANA)
……………………...J.
 (S. ABDUL NAZEER)
NEW DELHI,
JANUARY 23, 2018.

whether an award delivered by an Arbitrator, which decides the issue of limitation, can be said to be an interim award, and whether such interim award can then be set aside under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) = the award dated 23rd July, 2015 is an interim award, which being an arbitral award, can be challenged separately and independently under Section 34 of the Act. M/S INDIAN FARMERS FERTILIZER CO-OPERATIVE LIMITED …APPELLANT VERSUS M/S BHADRA PRODUCTS ...RESPONDENT

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 824 OF 2018
(ARISING OUT OF SLP (C) NO.19771 OF 2017)
M/S INDIAN FARMERS FERTILIZER
CO-OPERATIVE LIMITED …APPELLANT
VERSUS
M/S BHADRA PRODUCTS ...RESPONDENT
J U D G M E N T
R.F. Nariman, J.
1. Leave granted.
2. An interesting question arises as to whether an award
delivered by an Arbitrator, which decides the issue of limitation,
can be said to be an interim award, and whether such interim
award can then be set aside under Section 34 of the Arbitration
and Conciliation Act, 1996 (hereinafter referred to as “the Act”).
1
The brief facts necessary to dispose of the present appeal are
as follows.
3. The appellant before us issued a tender enquiry to 19
parties, including the respondent, for supply of Defoamers. The
respondent submitted its bid, pursuant to which a Letter of
Intent dated 2nd November, 2006 was issued to the respondent
for supply of 800 Metric Tonnes of Defoamers to be used for
production of 3,08,880 Metric Tonnes of P2O5. By 11th April,
2007, the respondent had supplied 800 Metric Tonnes of
Defoamers, however, they could not achieve the targeted
production by the end of 1st November, 2007, which was the
validity of the supply period. After considerable delay, on 6th
June, 2011, the respondent issued a legal notice demanding
payment of Rs.6,35,74,245/- on 27th September, 2012. The
appellant made it clear that there was nothing due and payable
to the respondent. Since disputes arose between the parties,
on 1st October, 2014 the respondent invoked arbitration, and on
25th January, 2015, Justice Deepak Verma, a retired Judge of
the Supreme Court, was appointed as the sole arbitrator. On
3
rd March, 2015, issues were framed. On 23rd July, 2015, the
2
learned Arbitrator thought it fit to take up the issue of limitation
first, inasmuch as the counsel appearing for both the parties
submitted that this issue could be decided on the basis of
documentary evidence alone. This issue was then decided in
favour of the claimant stating that their claims had not become
time barred. A petition filed under Section 34 of the Act
challenged the aforesaid award, styling it as the ‘First Partial
Award’. On 8th October, 2015, the District Judge,
Jagatsinghpur, dismissed the Section 34 Petition stating that
the aforesaid award could not be said to be an interim award
and that, therefore, the Court lacked jurisdiction to proceed
further under Section 34 of the Act. The appeal to the High
Court of Orissa was dismissed by the impugned order dated
30th June, 2017, reiterating the reasoning of the learned District
Judge.
4. Appearing on behalf of the appellant, Mr. K.K. Venugopal,
learned Attorney General, has argued before us that the award
made on 23rd July, 2015 is an interim award under the Act and
would, therefore, be amenable to challenge under Section 34 of
the Act as such. He referred us to various provisions of the Act
3
and buttressed his stand with reference to a number of
judgments, including, in particular, the judgment of National
Thermal Power Corpn. Ltd. v. Siemens Atkeingesellschaft,
(2007) 4 SCC 451. He also referred us to various judgments
on what constitutes an interim award and argued that,
according to him, the point of limitation being one of the issues
raised by the parties, was finally decided by the aforesaid
award and would, therefore, be amenable to challenge.
5. Shri Ajit Kumar Sinha, learned senior advocate appearing
on behalf of the respondent, also placed reliance on various
sections of the Act, in particular Sections 16 and 37 thereof.
According to the learned senior advocate, a ruling on the point
of limitation is a ruling on “jurisdiction” and any finding thereon
goes to the root of the case. This being the case, the drill of
Section 16 has to be followed, and as the plea of limitation has
been rejected by the learned Arbitrator, the arbitral proceedings
have to continue further and the challenge has to be postponed
only after all other issues have been decided. According to the
learned senior advocate, the scheme of Section 37, in particular
Section 37(2)(a), also makes it clear that appeals lie only from
4
an order under Section 16 accepting the plea but not rejecting
it. Also, according to the learned senior advocate, the present
award cannot be said to be an interim award, but is merely an
order passed under Section 16 of the Act. He also relied upon
several judgments to buttress his point of view and relied
heavily upon judgments which held that a decision on a point of
limitation goes to jurisdiction in which case Section 16 of the Act
would get attracted.
6. Having heard learned counsel for both parties, it is
important to first set out the relevant provisions of the Act,
which are as under:
“2. Definitions.—(1) In this Part, unless the context
otherwise requires,—
(c) “arbitral award” includes an interim award;
xxx xxx xxx
16. Competence of arbitral tribunal to rule on its
jurisdiction.—
(1) The arbitral tribunal may rule on its own
jurisdiction, including ruling on any objections with
respect to the existence or validity of the arbitration
agreement, and for that purpose,—
5
(a) an arbitration clause which forms part of a
contract shall be treated as an agreement
independent of the other terms of the contract; and
(b) a decision by the arbitral tribunal that the
contract is null and void shall not entail ipso jure the
invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have
jurisdiction shall be raised not later than the
submission of the statement of defence; however, a
party shall not be precluded from raising such a
plea merely because that he has appointed, or
participated in the appointment of, an arbitrator.
(3) A plea that the arbitral tribunal is exceeding the
scope of its authority shall be raised as soon as the
matter alleged to be beyond the scope of its
authority is raised during the arbitral proceedings.
(4) The arbitral tribunal may, in either of the cases
referred to in sub-section (2) or sub-section (3),
admit a later plea if it considers the delay justified.
(5) The arbitral tribunal shall decide on a plea
referred to in sub-section (2) or sub-section (3) and,
where the arbitral tribunal takes a decision rejecting
the plea, continue with the arbitral proceedings and
make an arbitral award.
(6) A party aggrieved by such an arbitral award may
make an application for setting aside such an
arbitral award in accordance with section 34.
xxx xxx xxx
31. Form and contents of arbitral award.—
(6) The arbitral tribunal may, at any time during the
arbitral proceedings, make an interim arbitral award
on any matter with respect to which it may make a
final arbitral award.
6
xxx xxx xxx
32. Termination of proceedings.—(1) The arbitral
proceedings shall be terminated by the final arbitral
award or by an order of the arbitral tribunal under
sub-section (2).
xxx xxx xxx
37. Appealable orders.—(1) An appeal shall lie
from the following orders (and from no others) to the
Court authorised by law to hear appeals from
original decrees of the Court passing the order,
namely:—
(a) refusing to refer the parties to arbitration under
section 8;
(b) granting or refusing to grant any measure under
section 9;
(c) setting aside or refusing to set aside an arbitral
award under section 34.
(2) Appeal shall also lie to a court from an order of
the arbitral tribunal—
(a) accepting the plea referred to in sub-section (2)
or sub-section (3) of section 16; or
(b) granting or refusing to grant an interim measure
under section 17.
(3) No second appeal shall lie from an order passed
in appeal under this section, but nothing in this
section shall affect or take away any right to appeal
to the Supreme Court.”
7. The point at issue is a narrow one: whether an award on
the issue of limitation can first be said to be an interim award
7
and, second, as to whether a decision on a point of limitation
would go to jurisdiction and, therefore, be covered by Section
16 of the Act.
8. As can be seen from Section 2(c) and Section 31(6),
except for stating that an arbitral award includes an interim
award, the Act is silent and does not define what an interim
award is. We are, therefore, left with Section 31(6) which
delineates the scope of interim arbitral awards and states that
the arbitral tribunal may make an interim arbitral award on any
matter with respect to which it may make a final arbitral award.
9. The language of Section 31(6) is advisedly wide in nature.
A reading of the said sub-section makes it clear that the
jurisdiction to make an interim arbitral award is left to the good
sense of the arbitral tribunal, and that it extends to “any matter”
with respect to which it may make a final arbitral award. The
expression “matter” is wide in nature, and subsumes issues at
which the parties are in dispute. It is clear, therefore, that any
point of dispute between the parties which has to be answered
by the arbitral tribunal can be the subject matter of an interim
8
arbitral award. However, it is important to add a note of caution.
In an appropriate case, the issue of more than one award may
be necessitated on the facts of that case. However, by dealing
with the matter in a piecemeal fashion, what must be borne in
mind is that the resolution of the dispute as a whole will be
delayed and parties will be put to additional expense. The
arbitral tribunal should, therefore, consider whether there is any
real advantage in delivering interim awards or in proceeding
with the matter as a whole and delivering one final award,
bearing in mind the avoidance of delay and additional expense.
Ultimately, a fair means for resolution of all disputes should be
uppermost in the mind of the arbitral tribunal.
10. To complete the scheme of the Act, Section 32(1) is also
material. This section goes on to state that the arbitral
proceedings would be terminated only by the final arbitral
award, as opposed to an interim award, thus making it clear
that there can be one or more interim awards, prior to a final
award, which conclusively determine some of the issues
between the parties, culminating in a final arbitral award which
ultimately decides all remaining issues between the parties.
9
11. The English Arbitration Act, 1996, throws some light on
what is regarded as an interim award under English Law.
Section 47 thereof states:
“47 Awards on different issues, &c.
(1) Unless otherwise agreed by the parties, the
tribunal may make more than one award at different
times on different aspects of the matters to be
determined.
(2) The tribunal may, in particular, make an award
relating—
(a) to an issue affecting the whole claim, or
(b) to a part only of the claims or cross-claims
submitted to it for decision.
(3) If the tribunal does so, it shall specify in its
award the issue, or the claim or part of a claim,
which is the subject matter of the award.”
12. By reading this section, it becomes clear that more than
one award finally determining any particular issue before the
arbitral tribunal can be made on different aspects of the matters
to be determined. A preliminary issue affecting the whole claim
would expressly be the subject matter of an interim award
under the English Act. The English Act advisedly does not use
the expression “interim” or “partial”, so as to make it clear that
the award covered by Section 47 of the English Act would be a
10
final determination of the particular issue that the arbitral
tribunal has decided.
13. In Exmar BV v National Iranian Tanker Co. [1992] 1
Lloyd's Rep. 169, an interim final award was made, which
contained the decision that it would not issue any such award in
the claimant’s favour pending determination of the respondent’s
counter claims. Detailed reasons were given for this decision.
The Judge, therefore, characterized the aforesaid award as an
award finally deciding a particular issue between the parties,
and concluded that as a result thereof, he had jurisdiction to
review the tribunal’s decision.
14. In Satwant Singh Sodhi v. State of Punjab (1999) 3
SCC 487 at 491 and 493, an interim award in respect of one
particular item was made by the arbitrator in that case. The
question before the Court was whether such award could be
made the rule of the Court separately or could be said to have
been superseded by a final award made on all the claims later.
This Court held:
11
“6. The question whether interim award is final to
the extent it goes or has effect till the final award is
delivered will depend upon the form of the award. If
the interim award is intended to have effect only so
long as the final award is not delivered it will have
the force of the interim award and it will cease to
have effect after the final award is made. If, on the
other hand, the interim award is intended to finally
determine the rights of the parties it will have the
force of a complete award and will have effect even
after the final award is delivered. The terms of the
award dated 26-11-1992 do not indicate that the
same is of interim nature.”
On the facts of the case, the Court then went on to hold:
“11. This Court in Rikhabdass v. Ballabhdas [AIR
1962 SC 551 : 1962 Supp (1) SCR 475] held that
once an award is made and signed by the arbitrator,
the arbitrator becomes functus officio. In Juggilal
Kamlapat v. General Fibre Dealers Ltd. [AIR 1962
SC 1123 : 1962 Supp (2) SCR 101] this Court held
that an arbitrator having signed his award becomes
functus officio but that did not mean that in no
circumstances could there be further arbitration
proceedings where an award was set aside or that
the same arbitrator could never have anything to do
with the award with respect to the same dispute.
Thus in the present case, it was not open to the
arbitrator to redetermine the claim and make an
award. Therefore, the view taken by the trial court
that the earlier award made and written though
signed was not pronounced but nevertheless had
become complete and final, therefore, should be
made the rule of the court appears to us to be
correct with regard to Item 1 inasmuch as the claim
in relation to Item 1 could not have been
adjudicated by the arbitrator again and it has been
12
rightly excluded from the second award made by
the arbitrator on 28-1-1994. Thus the view taken by
the trial court on this aspect also appears to us to
be correct. Therefore, the trial court has rightly
ordered the award dated 28-1-1994 to be the rule of
the court except for Item 1 and in respect of which
the award dated 26-11-1992 was ordered to be the
rule of the court.”
It is, thus, clear that the first award that was made that finally
determined one issue between the parties, with respect to Item
no.1 of the claim, was held to be an interim award inasmuch as
it finally determined claim 1 between the parties and, therefore,
could not be re-adjudicated all over again.
15. In McDermott International Inc. v. Burn Standard Co.
Ltd. (2006) 11 SCC 181 at page 211-212, under the heading
‘validity of the partial award’, this Court held:
“68. The 1996 Act does not use the expression
“partial award”. It uses interim award or final award.
An award has been defined under Section 2(c) to
include an interim award. Sub-section (6) of Section
31 contemplates an interim award. An interim award
in terms of the said provision is not one in respect of
which a final award can be made, but it may be a
final award on the matters covered thereby, but
made at an interim stage.
69. The learned arbitrator evolved the
aforementioned procedure so as to enable the
parties to address themselves as regards certain
13
disputes at the first instance. As would appear from
the partial award of the learned arbitrator, he
deferred some claims. He further expressed his
hope and trust that in relation to some claims, the
parties would arrive at some sort of settlement
having regard to the fact that ONGC directly or
indirectly was involved therein. While in relation to
some of the claims, a finality was attached to the
award, certain claims were deferred so as to enable
the learned arbitrator to advert thereto at a later
stage. If the partial award answers the definition of
the award, as envisaged under Section 2(c) of the
1996 Act, for all intent and purport, it would be a
final award. In fact, the validity of the said award
had also been questioned by BSCL by filing an
objection in relation thereto.
70. We cannot also lose sight of the fact that BSCL
did not raise any objection before the arbitrator in
relation to the jurisdiction of the arbitrator. A ground
to that effect has also not been taken in its
application under Section 34 of the Act. We,
however, even otherwise do not agree with the
contention of Mr Mitra that a partial award is akin to
a preliminary decree. On the other hand, we are of
the opinion that it is final in all respects with regard
to disputes referred to the arbitrator which are
subject-matters of such award. We may add that
some arbitrators instead and in place of using the
expression “interim award” use the expression
“partial award”. By reason thereof the nature and
character of an award is not changed. As, for
example, we may notice that in arbitral proceedings
conducted under the Rules of Arbitration of the
International Chamber of Commerce, the
expression “partial award” is generally used by the
arbitrators in place of interim award. In any view of
the matter, BSCL is not in any way prejudiced. We
may state that both the partial award and the final
14
award are subject-matter of challenge under
Section 34 of the Act.”
The aforesaid judgment makes it clear that an interim award or
partial award is a final award on matters covered therein made
at an intermediate stage of the arbitral proceedings.
16. Tested in the light of the statutory provisions and the case
law cited above, it is clear that as the learned Arbitrator has
disposed of one matter between the parties i.e. the issue of
limitation finally, the award dated 23rd July, 2015 is an “interim
award” within the meaning of Section 2(1)(c) of the Act and
being subsumed within the expression “arbitral award” could,
therefore, have been challenged under Section 34 of the Act.
17. However, Shri Sinha has argued before us that the award
dated 23rd July, 2015 being a ruling on the arbitral tribunal’s
jurisdiction would fall within Section 16 of the Act, and inasmuch
as the decision taken on the point of limitation was rejected, the
drill of Section 16 must be followed in which case all other
issues have to be decided first, and it is only after such issues
are decided that such an award can be challenged under
Section 34 of the Act. Section 16 of the Act lays down what, in
15
arbitration law, is stated to be the Kompetenz-kompetenz
principle, viz. that an arbitral tribunal may rule on its own
jurisdiction. At one time, the law was that the arbitrator, being a
creature of the contract, could not rule on the existence or
validity of the arbitration clause contained in the contract. This,
however, gave way to the Kompetenz principle which was
adopted by the UNCITRAL Model Law. Article 16 of the
UNCITRAL Model Law, on which Section 16 of the Act is based,
reads as follows:
“Article 16. Competence of arbitral tribunal to
rule on its jurisdiction
(1) The arbitral tribunal may rule on its own
jurisdiction, including any objections with respect to
the existence or validity of the arbitration
agreement. For that purpose, an arbitration clause
which forms part of a contract shall be treated as an
agreement independent of the other terms of the
contract. A decision by the arbitral tribunal that the
contract is null and void shall not entail ipso jure the
invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have
jurisdiction shall be raised not later than the
submission of the statement of defence. A party is
not precluded from raising such a plea by the fact
that he has appointed, or participated in the
appointment of, an arbitrator. A plea that the arbitral
tribunal is exceeding the scope of its authority shall
be raised as soon as the matter alleged to be
beyond the scope of its authority is raised during the
16
arbitral proceedings. The arbitral tribunal may, in
either case, admit a later plea if it considers the
delay justified.
(3) The arbitral tribunal may rule on a plea referred
to in paragraph (2) of this article either as a
preliminary question or in an award on the merits. If
the arbitral tribunal rules as a preliminary question
that it has jurisdiction, any party may request, within
thirty days after having received notice of that ruling,
the court specified in article 6 to decide the matter,
which decision shall be subject to no appeal; while
such a request is pending, the arbitral tribunal may
continue the arbitral proceedings and make an
award.”
18. The Statement of Objects and Reasons of the Act
expressly refers to the UNCITRAL Model Law in the following
terms:
“3. Though the said UNCITRAL Model Law and
Rules are intended to deal with international
commercial arbitration and conciliation, they could,
with appropriate modifications, serve as a model for
legislation on domestic arbitration and conciliation.
The present Bill seeks to consolidate and amend
the law relating to domestic arbitration, international
commercial arbitration, enforcement of foreign
arbitral awards and to define the law relating to
conciliation, taking into account the said UNCITRAL
Model Law and Rules.”
19. It may be noticed that Section 16(1) to (4) are based on
Article 16 of the UNCITRAL Model Law. The Kompetenz
principle deals with the arbitral tribunal’s jurisdiction in the
17
narrow sense of ruling on objections with respect to the
existence or validity of the arbitration agreement. What is
important to notice in the language of Section 16(1) is the fact
that the arbitral tribunal may rule on its own jurisdiction, which
makes it clear that it refers to whether the arbitral tribunal may
embark upon an inquiry into the issues raised by parties to the
dispute.
20. Here again, the English Arbitration Act of 1996 throws
some light on the problem before us. Sections 30 and 31 of
the said Act read as under:
“30 Competence of tribunal to rule on its own
jurisdiction. - (1) Unless otherwise agreed by the
parties, the arbitral tribunal may rule on its own
substantive jurisdiction, that is, as to—
(a) whether there is a valid arbitration agreement,
(b) whether the tribunal is properly constituted, and
(c) what matters have been submitted to arbitration
in accordance with the arbitration agreement.
(2) Any such ruling may be challenged by any
available arbitral process of appeal or review or in
accordance with the provisions of this Part.
31 Objection to substantive jurisdiction of
tribunal. - (1) An objection that the arbitral tribunal
lacks substantive jurisdiction at the outset of the
proceedings must be raised by a party not later than
the time he takes the first step in the proceedings to
18
contest the merits of any matter in relation to which
he challenges the tribunal’s jurisdiction.
A party is not precluded from raising such an
objection by the fact that he has appointed or
participated in the appointment of an arbitrator.
(2) Any objection during the course of the arbitral
proceedings that the arbitral tribunal is exceeding its
substantive jurisdiction must be made as soon as
possible after the matter alleged to be beyond its
jurisdiction is raised.
(3) The arbitral tribunal may admit an objection later
than the time specified in subsection (1) or (2) if it
considers the delay justified.
(4) Where an objection is duly taken to the tribunal’s
substantive jurisdiction and the tribunal has power
to rule on its own jurisdiction, it may— (a) rule on
the matter in an award as to jurisdiction, or (b) deal
with the objection in its award on the merits. If the
parties agree which of these courses the tribunal
should take, the tribunal shall proceed accordingly.
(5) The tribunal may in any case, and shall if the
parties so agree, stay proceedings whilst an
application is made to the court under section 32
(determination of preliminary point of jurisdiction).”
These sections make it clear that the Kompetenz
principle, which is also followed by the English Arbitration Act of
1996, is that the “jurisdiction” mentioned in Section 16 has
reference to three things: (1) as to whether there is the
existence of a valid arbitration agreement; (2) whether the
arbitral tribunal is properly constituted; and (3) matters
19
submitted to arbitration should be in accordance with the
arbitration agreement.
21. That “jurisdiction” is a coat of many colours, and that the
said word displays a certain colour depending upon the context
in which it is mentioned, is well-settled. In the classic sense, in
Official Trustee v. Sachindra Nath Chatterjee, (1969) 3 SCR
92 at 99, “jurisdiction” is stated to be:
“In the order of Reference to a Full Bench in the
case of Sukhlal v. Tara Chand [(1905) ILR 33 Cal
68] it was stated that jurisdiction may be defined to
be the power of a Court to hear and determine a
cause, to adjudicate and exercise any judicial
power in relation to it: in other words, by jurisdiction
is meant the authority which a Court has to decide
matters that are litigated before it or to take
cognizance of matters presented in a formal way for
its decision. An examination of the cases in the
books discloses numerous attempts to define the
term ‘jurisdiction’, which has been stated to be ‘the
power to hear and determine issues of law and fact’,
the authority by which the judicial officer take
cognizance of and ‘decide causes’; ‘the authority to
hear and decide a legal controversy’, ‘the power to
hear and determine the subject-matter in
controversy between parties to a suit and to
adjudicate or exercise any judicial power over
them;’ ‘the power to hear, determine and pronounce
judgment on the issues before the Court’; ‘the
power or authority which is conferred upon a Court
by the Legislature to hear and determine causes
between parties and to carry the judgments into
20
effect’; ‘the power to enquire into the facts, to apply
the law, to pronounce the judgment and to carry it
into execution’.”
(Mukherjee, Acting CJ, speaking for Full Bench of
the Calcutta High Court in Hirday Nath
Roy v. Ramachandra Barna Sarma ILR 68 Cal
138)
22. A Constitution Bench of this Court in Ittavira Mathai v.
Varkey Varkey, (1964) 1 SCR 495 at 501-503, made a
distinction between an erroneous decision on limitation being
an error of law which is within the jurisdiction of the Court, and a
decision where the Court acts without jurisdiction in the
following terms:
“The first point raised by Paikedy for the appellant is
that the decree in OS No. 59 of 1093 obtained by
Anantha Iyer and his brother in the suit on the
hypothecation bond executed by Ittiyavira in favour
of Ramalinga Iyer was a nullity because the suit
was barred by time. In assuming that the suit was
barred by time, it is difficult to appreciate the
contention of learned counsel that the decree can
be treated as a nullity and ignored in subsequent
litigation. If the suit was barred by time and yet, the
court decreed it, the court would be committing an
illegality and therefore the aggrieved party would be
entitled to have the decree set aside by preferring
an appeal against it. But it is well settled that a court
having jurisdiction over the subject-matter of the suit
and over the parties thereto, though bound to
decide right may decide wrong; and that even
though it decided wrong it would not be doing
something which it had no jurisdiction to do. It had
21
the jurisdiction over the subject-matter and it had
the jurisdiction over the party and, therefore, merely
because it made an error in deciding a vital issue in
the suit, it cannot be said that it has acted beyond
its jurisdiction. As has often been said, courts have
jurisdiction to decide right or to decide wrong and
even though they decide wrong, the decrees
rendered by them cannot be treated as nullities.
Learned counsel, however, referred us to the
decision of the Privy Council in Maqbul
Ahmad v. Onkar Pratap Narain Singh [AIR (1935)
PC 85] and contended that since the court is bound
under the provisions of Section 3 of the Limitation
Act to ascertain for itself whether the suit before it
was within time, it would act without jurisdiction if it
fails to do so. All that the decision relied upon says
is that Section 3 of the Limitation Act is peremptory
and that it is the duty of the court to take notice of
this provision and give effect to it even though the
point of limitation is not referred to in the pleadings.
The Privy Council has not said that where the court
fails to perform its duty, it acts without jurisdiction. If
it fails to do its duty, it merely makes an error of law
and an error of law can be corrected only in the
manner laid down in the Civil Procedure Code. If the
party aggrieved does not take appropriate steps to
have that error corrected, the erroneous decree will
hold good and will not be open to challenge on the
basis of being a nullity.”
23. It is in this sense of the term that “jurisdiction” has been
used in Section 16 of the Act. Indeed, in NTPC (supra) at
460-461, a Division Bench of this Court, after setting out
Sections 16 and 37 held:
22
“10. Now, the only question that remains to be
decided in the present case is whether against the
order of partial award an appeal is maintainable
directly under Section 37 of the Act or not. We have
considered the submissions of learned counsel for
the appellant and after going through the
counterclaim and the partial award, we are of the
opinion that no question of jurisdiction arises in the
matter so as to enable the appellant to file a direct
appeal under Section 37 of the Act before the High
Court. As already mentioned above, an appeal
under sub-section (2) of Section 37 only lies if there
is an order passed under Sections 16(2) and (3) of
the Act. Sections 16(2) and (3) deal with the
exercise of jurisdiction. The plea of jurisdiction was
not taken by the appellant. It was taken by the
respondent in order to meet their counterclaim. But
it was not in the context of the fact that the Tribunal
had no jurisdiction, it was in the context that this
question of counterclaim was no more open to be
decided for the simple reason that all the issues
which had been raised in Counterclaims 1 to 10 had
already been settled in the minutes of meeting
dated 6-4-2000/7-4-2000 and it was recorded that
no other issues were to be resolved in first and third
contracts. Therefore, we fail to understand how the
question of jurisdiction was involved in the matter. In
fact it was in the context of the fact that the entire
counterclaims have already been satisfied and
settled in the meeting that it was concluded that no
further issues remained to be settled. In this
context, the counterclaims filed by the appellant
were opposed. If any grievance was there, that
should have been (sic raised) by the respondent
and not by the appellant. It is only the finding of fact
recorded by the Tribunal after considering the
counterclaim vis-à-vis the minutes of meeting dated
6-4-2000/7-4-2000. Therefore, there was no
question of jurisdiction involved in the matter so as
23
to enable the appellant to approach the High Court
directly.”
Interestingly, in a separate concurring judgment, P.K.
Balasubramanyan, J., held:
“17. In the larger sense, any refusal to go into the
merits of a claim may be in the realm of jurisdiction.
Even the dismissal of the claim as barred by
limitation may in a sense touch on the jurisdiction of
the court or tribunal. When a claim is dismissed on
the ground of it being barred by limitation, it will be,
in a sense, a case of the court or tribunal refusing to
exercise jurisdiction to go into the merits of the
claim. In Pandurang Dhoni Chougule v. Maruti Hari
Jadhav [AIR 1996 SC 153 : (1996) 1 SCR 102] this
Court observed that: (AIR p. 155, para 10)
“It is well settled that a plea of limitation
or a plea of res judicata is a plea of law
which concerns the jurisdiction of the
court which tries the proceedings. A
finding on these pleas in favour of the
party raising them would oust the
jurisdiction of the court, and so, an
erroneous decision on these pleas can
be said to be concerned with questions
of jurisdiction which fall within the
purview of Section 115 of the Code.”
In a particular sense, therefore, any declining to go
into the merits of a claim could be said to be a case
of refusal to exercise jurisdiction.
18. The expression “jurisdiction” is a word of many
hues. Its colour is to be discerned from the setting in
which it is used. When we look at Section 16 of the
24
Act, we find that the said provision is one, which
deals with the competence of the Arbitral Tribunal to
rule on its own jurisdiction. SBP & Co. v. Patel
Engg. Ltd. [(2005) 8 SCC 618] in a sense confined
the operation of Section 16 to cases where the
Arbitral Tribunal was constituted at the instance of
the parties to the contract without reference to the
Chief Justice under Section 11(6) of the Act. In a
case where the parties had thus constituted the
Arbitral Tribunal without recourse to Section 11(6) of
the Act, they still have the right to question the
jurisdiction of the Arbitral Tribunal including the right
to invite a ruling on any objection with respect to the
existence or validity of the arbitration agreement. It
could therefore rule that there existed no arbitration
agreement, that the arbitration agreement was not
valid, or that the arbitration agreement did not
confer jurisdiction on the Tribunal to adjudicate upon
the particular claim that is put forward before it.
Under sub-section (5), it has the obligation to decide
the plea and where it rejects the plea, it could
continue with the arbitral proceedings and make the
award. Under sub-section (6), a party aggrieved by
such an arbitral award may make an application for
setting aside such arbitral award in accordance with
Section 34. In other words, in the challenge to the
award, the party aggrieved could raise the
contention that the Tribunal had no jurisdiction to
pass it or that it had exceeded its authority, in
passing it. This happens when the Tribunal
proceeds to pass an award. It is in the context of the
various sub-sections of Section 16 that one has to
understand the content of the expression
“jurisdiction” and the scope of the appeal provision.
In a case where the Arbitral Tribunal proceeds to
pass an award after overruling the objection relating
to jurisdiction, it is clear from sub-section (6) of
Section 16 that the parties have to resort to Section
34 of the Act to get rid of that award, if possible. But,
if the Tribunal declines jurisdiction or declines to
25
pass an award and dismisses the arbitral
proceedings, the party aggrieved is not without a
remedy. Section 37(2) deals with such a situation.
Where the plea of absence of jurisdiction or a claim
being in excess of jurisdiction is accepted by the
Arbitral Tribunal and it refuses to go into the merits
of the claim by declining jurisdiction, a direct appeal
is provided. In the context of Section 16 and the
specific wording of Section 37(2)(a) of the Act, it
would be appropriate to hold that what is made
directly appealable by Section 37(2)(a) of the Act is
only an acceptance of a plea of absence of
jurisdiction, or of excessive exercise of jurisdiction
and the refusal to proceed further either wholly or
partly.
19. In a case where a counterclaim is referred to
and dealt with and a plea that the counterclaim does
not survive in view of the settlement of disputes
between the parties earlier arrived at is accepted, it
could not be held to be a case of refusal to exercise
jurisdiction by the Arbitral Tribunal. Same is the
position when an Arbitral Tribunal finds that a claim
was dead and was not available to be made at the
relevant time or that the claim was not maintainable
for other valid reasons or that the claim was barred
by limitation. They are all adjudications by the
Tribunal on the merits of the claim and in such a
case the aggrieved party can have recourse only to
Section 34 of the Act and will have to succeed on
establishing any of the grounds available under that
provision. It would not be open to that party to take
up the position that by refusing to go into the merits
of his claim, the Arbitral Tribunal had upheld a plea
that it does not have jurisdiction to entertain the
claim and hence the award or order made by it,
comes within the purview of Section 16(2) of the Act
and consequently is appealable under Section 37(2)
(a) of the Act.”
26
(at pages 463-464)
24. This judgment is determinative of the issue at hand and
has our respectful concurrence. However, various judgments
were referred to by learned senior advocate appearing on
behalf of the respondent, in which “jurisdiction” in the wide
sense was used. Thus, a jurisdictional error under Section 115
of the Code of Civil Procedure, 1908, dealing with revision
petitions, was held to include questions which relate to res
judicata and limitation. [See Pandurang Dhoni Chougule v.
Maruti Hari Jadhav (1966) 1 SCR 102 at 107)].
25. This judgment was expressly referred to in the context of
Anisminic v. Foreign Compensation Commission, (1969) 2
AC 147, delivered in England, which virtually made all “errors of
law” “errors of jurisdiction” in the Administrative Law sphere
and explained in M.L. Sethi v. R.P. Kapur, (1972) 2 SCC
427 at 435 as under:
“...The dicta of the majority of the House of Lords in
the above case would show the extent to which
“lack” and “excess” of jurisdiction have been
assimilated or, in other words, the extent to which
we have moved away from the traditional concept of
“jurisdiction”. The effect of the dicta in that case is to
27
reduce the difference between jurisdictional error
and error of law within jurisdiction almost to
vanishing point. The practical effect of the decision
is that any error of law can be reckoned as
jurisdictional. This comes perilously close to saying
that there is jurisdiction if the decision is right in law
but none if it is wrong. Almost any misconstruction
of a statute can be represented as “basing their
decision on a matter with which they have no right
to deal”, “imposing an unwarranted condition” or
“addressing themselves to a wrong question”. The
majority opinion in the case leaves a Court or
Tribunal with virtually no margin of legal error.
Whether there is excess of jurisdiction or merely
error within jurisdiction can be determined only by
construing the empowering statute, which will give
little guidance. It is really a question of how much
latitude the court is prepared to allow. In the end it
can only be a value judgment (see H.N.R. Wade,
“Constitutional and Administrative Aspects of the
Anisminic case”. Law Quarterly Review, Vol.
85,1969, p. 198). Why is it that a wrong decision on
a question of limitation or res judicata was treated
as a jurisdictional error and liable to be interfered
with in revision? It is a bit difficult to understand how
an erroneous decision on a question of limitation or
res judicata would oust the jurisdiction of the court
in the primitive sense of the term and render the
decision or a decree embodying the decision a
nullity liable to collateral attack. The reason can only
be that the error of law was considered as vital by
the court. And there is no yardstick to determine the
magnitude of the error other than the opinion of the
Court…”
26. Likewise, in Hari Prasad Mulshanker Trivedi v. V.B.
Raju (1974) 3 SCC 415 at 423-424, a Constitution Bench of
28
this Court again referred to the blurring of lines between errors
of law and errors of jurisdiction found in Anisminic (supra) as
follows:
“Though the dividing line between lack of jurisdiction
or power and erroneous exercise of it has become
thin with the decision of the House of Lords in the
Anisminic case, [(1967) 3 WLR 382] we do not think
that the distinction between the two has been
completely wiped out. We are aware of the difficulty
in formulating an exhaustive rule to tell when there
is lack of power and when there is an erroneous
exercise of it. The difficulty has arisen because the
word “jurisdiction” is an expression which is used in
a variety of senses and takes its colour from its
context, (see per Diplock, J., at p. 394 in
the Anisminic case). Whereas the “pure” theory of
jurisdiction would reduce jurisdictional control to a
vanishing point, the adoption of a narrower meaning
might result in a more useful legal concept even
though the formal structure of law may lose
something of its logical symmetry. “At bottom the
problem of defining the concept of jurisdiction for
purpose of judicial review has been one of public
policy rather than one of logic”. [S. A. Smith :
“Judicial Review of Administrative Action”, 2nd Edn.,
p. 98] And viewed from the aspect of public policy
as reflected in the provisions of the 1950 and 1951
Acts, we do not think that a wrong decision on a
question of ordinary residence for the purpose of
entering a person's name in the electoral roll should
be treated as a jurisdictional error which can be
judicially reviewed either in a civil court or before an
election tribunal.”
29
27. In ITW Signode India Ltd. v. CCE (2004) 3 SCC 48 at
74, a case strongly relied upon by Shri Sinha, this Court held in
the context of limitation qua recovery of duty under Section 11A
of the Central Excise Act, 1944 as follows:
“69. The question of limitation involves a question of
jurisdiction. The finding of fact on the question of
jurisdiction would be a jurisdictional fact. Such a
jurisdictional question is to be determined having
regard to both fact and law involved therein. The
Tribunal, in our opinion, committed a manifest error
in not determining the said question, particularly,
when in the absence of any finding of fact that such
short-levy of excise duty related to any positive act
on the part of the appellant by way of fraud,
collusion, wilful misstatement or suppression of
facts, the extended period of limitation could not
have been invoked and in that view of the matter no
show-cause notice in terms of Rule 10 could have
been issued.”
28. Given the context of Section 11A of the Central Excise
Act, 1944, obviously the expression “jurisdiction” would mean
something more than merely being able to embark on the
merits of a dispute. In a recent judgment under Section 9A of
the Code of Civil Procedure, 1908 (as inserted by the State of
Maharashtra), this Court in Foreshore Coop. Housing Society
Ltd. v. Praveen D. Desai (2015) 6 SCC 412, referred to the
30
expression “jurisdiction” occurring in Section 9A and held an
earlier judgment of this Court to be per incuriam. Though the
Constitution Bench judgment in Ittavira (supra) was mentioned
by the Bench, referring to the argument of one of the counsel
for the parties, in the concluding portion, this judgment is not
referred to at all. In any case, the reasoning of the Court in that
case was in the context of Section 9A which, when contrasted
with Order XIV of the Code of Civil Procedure, 1908, made the
Court accept the wider concept of “jurisdiction” as laid down in
Pandurang (supra).
29. In our view, therefore, it is clear that the award dated 23rd
July, 2015 is an interim award, which being an arbitral award,
can be challenged separately and independently under Section
34 of the Act. We are of the view that such an award, which
does not relate to the arbitral tribunal’s own jurisdiction under
Section 16, does not have to follow the drill of Section 16(5)
and (6) of the Act. Having said this, we are of the view that
Parliament may consider amending Section 34 of the Act so as
to consolidate all interim awards together with the final arbitral
award, so that one challenge under Section 34 can be made
31
after delivery of the final arbitral award. Piecemeal challenges
like piecemeal awards lead to unnecessary delay and additional
expense.
30. The appeal is, accordingly, allowed and the impugned
judgment is set aside. The Section 34 proceedings before the
District Judge, Jagatsinghpur may now be decided. There
shall, however, be no order as to costs.
……………………….J.
(R.F. Nariman)
……………………….J.
(Navin Sinha)
New Delhi;
January 23, 2018.
32

omission to frame the charges under Section 34 IPC, in spite of framing the issue of common intention, the trial court has not examined the evidence in proper perspective, which according to the High Court has materially affected the trial which is called for retrial. The discretion exercised by the High Court under Section 386 (a) Cr.P.C. directing retrial with certain directions cannot be said to be erroneous warranting interference. ISSAC @ KISHOR .....Appellant Versus RONALD CHERIYAN AND ORS. ....Respondents

REPORTABLE
IN SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.165 OF 2018
(Arising out of SLP(Crl.) No. 9571 of 2012)
ISSAC @ KISHOR .....Appellant
Versus
RONALD CHERIYAN AND ORS. ....Respondents
O R D E R
R. BANUMATHI, J.
Leave granted.
2. This appeal arises out of the judgment dated 25.07.2012 passed
by Kerala High Court at Ernakulam allowing Criminal Revision Petition
No.3413 of 2008 preferred by respondent no.1 herein thereby setting
aside the acquittal of the appellant-accused no.1 for the offences
punishable under Section 302 IPC and Section 394 IPC read with
Section 34 IPC and further remitting the matter back to the trial Court
for retrial.
3. Briefly stated case of the prosecution is that, the
deceased-Brijitha was sixty three years old widow and used to stay
Page No. 1 of 11
alone in her house which was situated in five acres of agricultural land.
Natarajan, father of accused no.1 used to stay in the same house
where Brijitha was staying. He was a permanent employee of Brijitha.
Respondent no.1-Ronald Cheriyan, son of the deceased, for some
reasons, directed Natarajan not to stay in the house and therefore,
Natarajan discontinued his employment. Thereafter, for helping the
deceased in agricultural work, the appellant-accused no.1 started
staying with the deceased in her house. On 06.02.2006 in the
midnight, sister-in-law of deceased who was staying at a distance of
50 meters from the house of the deceased, heard cries from the house
of deceased. On hearing the cries of deceased, sister-in–law of
deceased got awaken her son Cheriyan @ Shabin (PW-1). Then,
PW-1 went to the house of deceased and asked the appellant-accused
no.1 to open the door of the kitchen; but the appellant-accused no.1
told him that he being tied with rope could not open the door and
asked PW-1 to take entry from the front door. PW-1, on entering the
house from front door, found the deceased lying in unconscious state
in the front room of the house and the appellant-accused no.1 being
tied with rope in the kitchen. The appellant-accused no.1 told PW-1
that five thieves had entered the house and after suffocating the
Page No. 2 of 11
deceased took away all the valuable gold ornaments and cash from
the house. PW-1 informed about the incident to respondent
no.1-Ronald Cheriyan, eldest son of the deceased, and then they took
the deceased to the St. John Hospital, Kattappana where she was
declared dead. At about 04.00 a.m., PW-1 went to Kattappana police
station and his statement (Ex.P1) was recorded by
PW-22-Sub-Inspector of Police, on the basis of which, case in Crime
No. 49 of 2006 was registered against five identifiable persons under
Section 396 IPC.
4. After registration of FIR, the Inspector of Police, during
investigation prepared the spot panchnama (scene mahazar) and also
taken the finger prints from the scene of crime. The appellant-accused
no.1 was arrested on 07.02.2006 at 06.20 p.m. who gave a disclosure
statement; based on which, accused no.2 was located and arrested on
the same day at 08.00 p.m. Confession statement of accused no.2 led
to recovery of gold ornaments, currency notes and shawl which was
used to suffocate the deceased, from the house of accused no.2.
Also, the grey hair found on the shawl were preserved for further
investigation. The post-mortem report disclosed that death of the
deceased was caused due to smothering. After completion of the
Page No. 3 of 11
investigation, charge-sheet was filed against the appellant-accused
no.1 under Section 394 IPC and Section 302 IPC read with Section 34
IPC.
5. The trial court convicted accused no.2 under Sections 302 and
394 IPC inter alia on the following grounds:- a) presence of accused
no.1 has been confirmed in the house of the deceased due to the fact
that finger prints of the accused were found on the objects recovered
from the place of crime; b) ornaments of the deceased and the
currency notes were recovered from the house of accused no.2; c)
recovery of shawl which was used in the commission of offence
containing hair of the deceased, from the house of accused no.2; and
d) that accused no.2 was in dire need of money to pay back his debts.
The trial court has acquitted the appellant-accused no.1 holding that
the disclosure statement given by the appellant regarding involvement
of accused no. 2 and location of the house of accused no.2, are not
sufficient grounds to establish the guilt of appellant. The trial court
held that the chance finger prints of the appellant-accused no.1
collected from the place of occurrence was immaterial as he was
working as domestic help in the house of deceased.
Page No. 4 of 11
6. Being aggrieved by acquittal of appellant, respondent no.1-eldest
son of the deceased filed a criminal revision challenging the acquittal
of the appellant-accused no.1. Accused no.2 also filed a criminal
appeal before the High Court challenging his conviction and sentence.
7. The High Court held that the trial court has committed irregularity
in omitting to frame charges under Section 34 IPC, even though the
trial court itself has framed an issue on the point of sharing of common
intention of accused nos.1 and 2 in committing robbery and murder of
the deceased which has materially affected the trial. The High Court
further held that the fingerprint expert who had prepared the report
(Ex.P8) ought to have been examined before the trial court and
non-examination of that witness has caused prejudice. The High
Court has taken note of that the trial court has failed to evaluate the
possibility of accused no.2 in committing the crime alone without the
aid of the appellant and also that there was no injury on the appellant
when he was found tied with the rope in the house of deceased.
8. We have heard learned counsel for the parties and perused the
impugned judgment and materials on record. The point falling for
consideration is whether the High Court was right in setting aside the
Page No. 5 of 11
judgment of the trial court and remitting the matter back to the trial
court for retrial.
9. Section 386 Cr.P.C. defines the powers of the Appellate Court in
dealing with the appeals. The powers enumerated thereon are vested
in all courts, whether the High Court or subordinate courts, except that
Clause (a) of the section is restricted to the powers of the High Court
only, since an appeal against an order of acquittal lies only to that
court, while Clause (b) of the section is not so restricted and embraces
all courts. The power to direct the accused to be retried has been
conferred on the High Court not only when it deals with an appeal
against acquittal but also when it deals with an appeal against
conviction. Section 386 Cr.P.C. reads as under:-
"Section 386:- After perusing such record and hearing the
appellant or his pleader, if he appears, and the Public Prosecutor if
he appears, and in case of an appeal under Section 377 or Section
378, the accused, if he appears, the Appellate Court may, if it
considers that there is no sufficient ground for interfering, dismiss
the appeal, or may :-
(a) In an appeal from an order of acquittal, reverse such
order and direct that further inquiry be made, or that the
accused be re-tried or committed for trial, as the case
may be, or find him guilty and pass sentence on him
according to law;
(b) In an appeal from a conviction:-
(i) Reverse the finding and sentence and acquit or
discharge the accused, or order him to be
re-tried by a Court of Competent jurisdiction
subordinate to such Appellate Court or
committed for trial, or
Page No. 6 of 11
(ii) Alter the finding, maintaining the sentence, or
(iii) With or without altering the finding, alter the
nature or the extent, or the nature and extent, of
the sentence, but not so as to enhance the
same;
............"
10. Under Section 386(a) and (b)(i), the power to direct retrial has
been conferred upon the Appellate Court when it deals either with an
appeal against judgment of conviction or an appeal against acquittal
(High Court). There is a difference between the powers of an
Appellate Court under Clauses (a) and (b). Under Clause (b), the
Court is required to touch the finding and sentence, but under Clause
(a), the Court may reverse the order of acquittal and direct that further
enquiry be made or the accused may be retried or may find him guilty
and pass sentence on him according to law.
11. Normally, retrial should not be ordered when there is some
infirmity rendering the trial defective. A retrial may be ordered when
the original trial has not been satisfactory for particular reasons like...,
appropriate charge not framed, evidence wrongly rejected which could
have been admitted or evidence admitted which could have been
rejected etc. Retrial cannot be ordered when there is a mere
irregularity or where it does not cause any prejudice, the Appellate
Page No. 7 of 11
Court may not direct retrial. The power to order retrial should be
exercised only in exceptional cases.
12. In K. Chinnaswamy Ready v. State of Andhra Pradesh and
Another, AIR 1962 SC 1788, the accused had been convicted by the
trial court. The Sessions Court took the view that an important piece
of evidence held against the accused was inadmissible and acquitted
him. The High Court in revision by the de facto complainant held that
the evidence held to be inadmissible by the Sessions Court was
admissible and set aside the acquittal directing the accused to be
retried on the same charges. The Supreme Court agreed with the
High Court that the acquittal deserved to be set aside. In para (7), this
Court has spelt out what could be termed as exceptional
circumstances which reads as under:-
"7. It is true that it is open to a High Court in revision to set aside an
order of acquittal even at the instance of private parties, though the
State may not have thought fit to appeal; but this jurisdiction should
in our opinion be exercised by the High Court only in exceptional
cases, when there is some glaring defect in the procedure or there
is a manifest error on a point of law and consequently there has
been a flagrant miscarriage of justice. Sub-section (4) of Section
439 forbids a High Court from converting a finding of acquittal into
one of conviction and that makes it all the more incumbent on the
High Court to see that it does not convert the finding of acquittal
into one of conviction by the indirect method of ordering retrial,
when it cannot itself directly convert a finding of acquittal into a
finding of conviction. This places limitations on the power of the
High Court to set aside a finding of acquittal in revision and it is only
in exceptional cases that this power should be exercised. It is not
possible to lay down the criteria for determining such exceptional
cases which would cover all contingencies. We may however
Page No. 8 of 11
indicate some cases of this kind, which would in our opinion justify
the High Court in interfering with a finding of acquittal in revision.
These cases may be: where the trial court has no jurisdiction to try
the case but has still acquitted the accused, or where the trial court
has wrongly shut out evidence which the prosecution wished to
produce, or where the appeal court has wrongly held evidence
which was admitted by the trial court to be inadmissible, or where
material evidence has been overlooked either by the trial court or
by the appeal court, or where the acquittal is based on a
compounding of the offence, which is invalid under the law. These
and other cases of similar nature can properly be held to be cases
of exceptional nature, where the High Court can justifiably interfere
with an order of acquittal; and in such a case it is obvious that it
cannot be said that the High Court was doing indirectly what it
could not do directly in view of the provisions of Section 439(4)......"
(underlining added)
The same principle was again reiterated in Mahendra Pratap Singh v.
Sarju Singh and Another AIR 1968 SC 707.
13. In Matukdhari Singh and others v. Janardan Prasad, AIR 1966
SC 356, accused was tried for offences under Sections 420, 466, 406
and 465/471 IPC and acquitted. The trial court did not frame charge
under Section 467 IPC regarding which there were prima facie
materials available, that is an offence triable exclusively by the
Sessions Court. The High Court, in appeal, set aside the acquittal and
ordered retrial. The Supreme Court dismissed the appeal preferred
before it. The court referred to earlier decisions in Abinash Chandra
Bose v. Bimal Krishna Sen and Another AIR 1963 SC 316 and
Rajeshwar Prasad Misra v. State of West Bengal and Another AIR
Page No. 9 of 11
1965 SC 1887 with reference to the facts of those cases and
emphasized that wide discretion available with the Appellate Court in
ordering retrial.
14. In appeal against acquittal, in exceptional circumstances, the
High Court may set aside the order of acquittal even at the instance of
private parties, though the State may not have thought it fit for appeal.
But it is to be emphasized that this jurisdiction is to be exercised only
in exceptional circumstances when there is glaring defect in the
conduct of trial which has materially affected the trial or caused
prejudice. In the present case, the High Court found that even though
the trial court has framed an issue on the point of sharing of common
intention of accused Nos. 1 and 2 in committing the offence, the
omission to frame charges under Section 34 IPC has materially
affected the trial. The High Court further observed that the fingerprint
expert who prepared Ex. P8 ought to have been examined and other
circumstances emerging out of evidence ought to have been examined
by the trial court. The High Court further observed that because of the
omission to frame the charges under Section 34 IPC, in spite of
framing the issue of common intention, the trial court has not
examined the evidence in proper perspective, which according to the
Page No. 10 of 11
High Court has materially affected the trial which is called for retrial.
The discretion exercised by the High Court under Section 386 (a)
Cr.P.C. directing retrial with certain directions cannot be said to be
erroneous warranting interference.
15. In the result, the appeal is dismissed. The trial court shall
proceed with the matter as per the directions of the High Court and
dispose of the matter as expeditiously as possible. No costs.
.....…….…………...………J.
 [RANJAN GOGOI]
....…………….……………J.
 [R. BANUMATHI]
New Delhi;
January 23, 2018
Page No. 11 of 11

We, therefore, as a one-time relaxation in favour of those candidates who were enrolled during the academic years 2001-2005 and who, in terms of the judgment, are eligible to appear at the test to be conducted by AICTE, direct:- a] All such candidates, who wish to appear at the forthcoming test to be conducted by AICTE in May-June 2018 and who exercise option to appear at the test in terms of the judgment, can retain the degrees in 11 question and all the advantages flowing therefrom till one month after the declaration of the result of such test or till 31.07.2018 whichever is earlier. b] This facility is given as one-time exception so that those who have the ability and can pass the test in the first attempt itself, should not be put to inconvenience. If the candidates pass in such first attempt, they would be entitled to retain all the advantages. But if they fail or choose not to appear, the directions in the judgment shall apply, in that the degrees and all advantages shall stand suspended and withdrawn. At the cost of repetition, it is made clear that no more such chances or exceptions will be given or made. They will undoubtedly be entitled to appear on the second occasion in terms of the judgment but this exception shall not apply for such second attempt. c] We direct AICTE to conduct the test in May-June 2018 and declare the result well in time, in terms of our directions in the judgment and this Order. AICTE shall however extend the time to exercise the option to appear at the test suitably. 8] Except for the directions given in the preceding paragraph i.e. paragraph 7 and the clarification as regards courses leading to award of diplomas as mentioned hereinabove, we reject all the other submissions.

1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
M.A. NOS.1795-1796 OF 2017
IN
CIVIL APPEAL NOS.17869-17870 OF 2017
ORISSA LIFT IRRIGATION CORP. LTD ……APPELLANTS
VERSUS
RABI SANKAR PATRO & ORS. .…..RESPONDENTS

WITH
Diary No(s).39667/2017
IA 138802/2017 in C.A. No.17870/2017)
MA 1807-1808/2017 in C.A. No. 17869-17870/2017
MA 1797-1798/2017 in C.A. No. 17869-17870/2017
MA 1799-1800/2017 in C.A. No. 17869-17870/2017
MA 1801-1802/2017 in C.A. No. 17869-17870/2017
MA 1803-1804/2017 in C.A. No. 17869-17870/2017
MA 1805-1806/2017 in C.A. No. 17869-17870/2017
MA 1864-1865/2017 in C.A. No. 17869-17870/2017
MA 1866-1867/2017 in C.A. No. 17869-17870/2017
MA 1870-1871/2017 in C.A. No. 17869-17870/2017
MA 1868-1869/2017 in C.A. No. 17869-17870/2017
MA 1872-1873/2017 in C.A. No. 17869-17870/2017
MA 11-12/2018 in C.A. No. 17869-17870/2017
MA 1874-1875/2017 in C.A. No. 17869-17870/2017
MA 1876-1877/2017 in C.A. No. 17869-17870/2017
Diary No(s). 42444/2017
IA 487/2018 in C.A. No.17870/2017)
 MA 5-6/2018 in C.A. No. 17869-17870/2017
Diary No(s).356/2018
IA 1080/2018 in C.A. No.17870/2017)
MA 17-18/2018 in C.A. No. 17869-17870/2017
MA 13-14/2018 in C.A. No. 17869-17870/2017
MA 15-16/2018 in C.A. No. 17869-17870/2017
Writ Petition (Civil) No. 1233 of 2017
M.A. No. 38 of 2018 in C.A. No.17907/2017
2
ORDER
Uday Umesh Lalit, J.
1. These applications have been preferred seeking clarification and
modification of directions issued by this Court in its Judgment and Order dated
03.11.2017 (“the judgment” for short) in Civil Appeal Nos.17869-17870 of
2017. Various directions were issued in the judgment and more particularly in
paragraph No.53 of the judgment. The gist of the applications and the
contentions advanced by the learned counsel were as follows:-
A] M.A. Nos. 1795-1796 of 2017 in CIVIL APPEAL Nos.17869-17870 of
2017 (I.A. No.138771 of 2017)
MA 1797-1798/2017 in C.A. No. 17869-17870/2017 (I.A. No.138778 of
2017)
 MA 1799-1800/2017 in C.A. No. 17869-17870/2017(I.A. No.13890 of
2017)
MA 1801-1802/2017 in C.A. No. 17869-17870/2017 (I.A. No.138791 of
2017)
MA 1803-1804/2017 in C.A. No. 17869-17870/2017 (I.A. No.138793 of
2017)
MA 1805-1806/2017 in C.A. No. 17869-17870/2017(I.A. No.138795 of
2017)
The applicants, holding diplomas in Engineering, enrolled themselves in
2005 in courses leading to award of B.Tech degree offered by Deemed to be
University in question through distance learning mode. Later, on the basis of
the degrees awarded by the Deemed to be Universities, they underwent
independent selection undertaken by Union Public Service Commission and
entered certain services as direct recruits and have presently either been
3
engaged in the same service or have advanced in career on the basis of such
selection by UPSC.
Mr. V. Giri, learned Senior Advocate submitted that the controversy in the
judgment was principally concerning the cases of in-service candidates who
were initially employed as diploma holders but while in service had been
awarded degrees in Engineering by Deemed to be Universities in question
through distance learning mode; and that this Court was not called upon to
consider cases where such degrees themselves became the foundation for a
subsequent employment or selection and further advancement in career. He
further submitted that an exception be made in favour of such candidates whose
qualifications were independently considered by an authority such as UPSC and
were selected through competitive selection process and in any case, even if the
Judgment were to apply to such candidates, the suspension of their degrees and
all advantages flowing therefrom till they pass the test as indicated in the
judgment ought not to be insisted upon. He submitted that unlike in-service
candidates who may not be losing their jobs, such candidates, who had
independently undergone fresh selection and were directly appointed would
lose their jobs completely and even if they were to successfully pass the test
conducted by AICTE, restoration of their original position and jobs would itself
become a difficult proposition.
B] M.A. Nos.13-14/2018 in C.A. No.17869-17870 of 2017(I.A. No.991 &
994 of 2018
4
M.A. Nos.15-16/2018 in C.A. No.17869-17870 of 2017(I.A. No.1019 of
2018
The applicants had completed B.Tech courses in Computer Science
through distance education mode in 2004. According to them, instructions were
imparted in ITM International and they were awarded degrees by Allahabad
Agricultural Institute, Deemed to be University. Later they acquired degrees in
M.Tech and other qualifications based on such B.Tech degree and have
thereafter advanced in career.
Ms. Meenakshi Arora, learned Senior Advocate while adopting the
submissions of Mr. V. Giri, learned Senior Advocate submitted that ITM
International is an Institution of repute and no infirmity could be attributed to
their degrees. Further, her clients in any case had undergone further selection
process where knowledge of the candidates was independently tested and they
were appointed in others posts.
C] Diary No.356 of 2018 in C.A. No.17869-17870 of 2017 (I.A. No.1080
of 2018)
M.A. Nos.17-18 of 2018 in C.A. No.17869-17870 of 2017 (I.A.
Nos.1049 and 1054 of 2018
The candidates had acquired first degrees in Engineering from a regular
and approved Institution and as such their first degrees are not invalid or
irregular on any count. However, these candidates had later acquired Master’s
degrees in Engineering from Deemed to be Universities through
5
distanceM.A.1795-1796 of 2017 in C.A. Nos.17869-17870 of 2017(1).docx
education mode.
Mr. Kapil Sibal, learned Senior Advocate invited our attention to the
advertisement issued by AICTE in which all candidates including those who
had secured Master’s degrees in Engineering from Deemed to be Universities in
question through distance education mode were also required to appear at the
test. In his submission this Court was principally concerned with first degrees
in engineering which were acquired through distance education mode and not
the Master’s degrees. He further submitted that those candidates who had
acquired such Masters’ Degrees in engineering were not covered by the
judgment.
D] M.A. Nos.1866-67/2017 in C.A. Nos.17869-17870 of 2017 (I.A.
Nos.141892 of 2017
M.A. Nos.1868-1869/2017 in C.A. Nos.17869-17870 of 2017 (I.A.
Nos.141912 of 2017
M.A.Nos.1872-73/17 in C. A. Nos.17869-17870 of 2017 (I.A.
Nos.141948 of 2017 ON IA 516/2018 ON IA516/2018
The applicants were awarded diplomas in Engineering through distance
education mode by the concerned Deemed to be Universities.
Mr. Dhruv Mehta, learned Senior Advocate invited our attention to
paragraphs 34 and 46 of the Judgment and submitted that this Court was
concerned with courses leading to degrees of Engineering and not to diplomas
and as such rigor of the Judgment ought not to apply to pure and simply
diploma holders. In his submission, the public notice issued by AICTE was
6
beyond the scope of the matter.
E] Diary No.39667 of 2017 in C. A. No.17869-17870 of 2017 (I.A.
No.138802 of 2017)
M.A. No.S1807-1808 of 2017 in C. A. No.17869-17870 of 2017 (I.A.
Nos.138799 of 2017
Diary No.42444 of 2017 in C.A. Nos.17869-17870 of 2017 (I.A. No.487
of 2018
M.A. Nos.5-6 of 2017 in C.A. No.17869-17870 of 2017 (I.A. No.511 of
2018
In the present case, the applicants had enrolled themselves in courses
offered by Vinayaka Missions Research Foundation (VMRF) through distance
education mode.
Mr. Anupam Lal Das, learned Advocate submitted that as is evident from
the affidavit of Mr. Ved Prakash, Chairman, UGC as extracted in the judgment,
VMRF was granted Deemed to be University status for its excellence in
subjects including engineering and technology unlike other Deemed to be
Universities, namely, JRN, IASE and AAI. He invited our attention to
Paragraphs 21, 34 and 39 of the judgment and submitted that the case of VMRF
stood on a different footing and the courses offered by VMRF were not in any
way found to be on the wrong side.
F] M.A. Nos.1874-1875/2017 in C.A. No.17869/2017 (I.A. No.141960 of
2017)
M.A. Nos.1876-1877/2017 in C.A. No.17869/2017 (I.A.
No.141971/2017
These applicants after being awarded degrees in Engineering by Deemed
7
to be Universities through distance education mode had completed their
post-graduate courses.
While adopting submissions of Mr. V. Giri and Ms. Meenakshi Arora,
learned Senior Advocates, Mr. R.S. Suri, learned Senior Advocate submitted
that some weightage be given to the higher qualifications acquired by
candidates.
G] M.A. Nos.11-12/2018 in C.A. Nos.17869-17870 of 2017 (I.A. Nos.972/
2017, 644/2018, 645/2018 and 973/2018
The applicants had acquired degrees in Mining Engineering through
distance education mode and have advanced in their career in NMDC, a
Statutory Corporation.
Mr. Vikramjit Banerjee, leaned Senior Advocate submitted that their
ability was tested by said organization and his clients be exempted from
appearing in examination.
H] Writ Petition Civil No.1233 of 2017
These applicants were awarded degrees in Engineering through distance
education mode by Deemed to be Universities in question. It is stated that most
of the applicants have joined Private, Corporate and Government services and
some of them are in Corporate jobs and even in Foreign Countries. Some of
them are stated to have obtained M.Tech and further degrees and have advanced
in life.
8
Mr. Ranajit Kumar, Mr. P.N. Mishra and Mr. Huzefa Ahmadi, learned
Senior Advocates, appearing for the applicants advanced submissions on lines
similar to the submissions advanced by Mr. V. Giri, Ms. Arora and Mr. Sibal.
I] M.A. No. 38 of 2018 in C.A. No.17907/2017
The applicant, IASE, Deemed to be University seeks clarification that the
judgment applied only to courses leading to degrees in Engineering awarded by
Deemed to be Universities through distance education mode and that diploma
courses are not covered by the judgment.
Mr. M.L. Verma, learned Senior Advocate invited our attention to the
advertisement issued by AICTE. His submissions on the issue in question are
on lines similar to the submissions advanced by Mr. Dhruv Mehta, learned
Senior Advocate.
2] We also heard Mr. Maninder Singh, learned Additional Solicitor General
who appeared on behalf of AICTE.
3] It is true, as is evident from paragraphs 34 and 46 of the judgment that the
controversy in the present case pertained to validity of degrees in Engineering
conferred by the Deemed to be Universities through distance education mode
and this Court was not called upon to consider validity of diplomas conferred
by such Deemed to be Universities. However the advertisement issued by
AICTE covers diploma courses as well. We therefore accept the submissions
advanced by Mr. Dhruv Mehta and Mr. M.L. Verma, learned Senior Advocates
9
and clarify that validity of such courses leading to diplomas was not the subject
matter of the judgment.
4] At the same time, courses leading to award of degrees, whether graduate
or post graduate degrees, was certainly the matter in issue. We therefore reject
the submission of Mr. Kapil Sibal, learned Senior Advocate and do not find any
infirmity in the understanding of and the advertisement issued by AICTE.
5] Mr. Anupam Lal Das, learned Advocate is right that JRN, AAI and IASE
had no expertise in the field or subjects of Engineering and the status of
Deemed Universities conferred on them was not because of their excellence in
the field of Engineering. As against these three Deemed to be Universities, the
case of VMRF stood on a better footing as its field of activity and excellence
also included subjects in Engineering. However that was not the only basis of
the judgment. The facts still remain that conferral of degrees in Engineering
through distance education mode was never approved in principle by AICTE
and the Study Centres were never inspected or approved. We therefore reject
the submission of Mr. Anupam Lal Das, learned Advocate.
6] If award of degrees in Engineering through distance education mode by
Deemed to be Universities, as a concept or principle was not accepted by
AICTE, it is immaterial whether the Study Centre in question was ITM
International. Said Institution was not by itself authorized to award degrees in
Engineering on its own nor was it affiliated to any State or Central University at
10
the relevant time. The courses conducted by said institution led to award of
degrees of AAI, which had no expertise or excellence in the field of
Engineering and through distance education mode. We therefore reject the
submission advanced by Ms. Meenakshi Arora, learned Senior Advocate.
7] We now turn to the general submission advanced by all the learned
counsel that the candidates after securing the degrees in Engineering through
distance education mode, have advanced in career and that their ability was
tested at various levels and as such requirement of passing the examination in
terms of the judgment be dispensed with in their case. We cannot make any
such exception. The infirmity in their degrees is basic and fundamental and
cannot be wished away. At the same time, we find some force in their
submission that if the suspension of their degrees and all advantages were to
apply as indicated in the judgment, the concerned candidates may lose their jobs
and even if they were to successfully pass the test, restoration of their jobs and
present position would pose some difficulty.
We, therefore, as a one-time relaxation in favour of those candidates who
were enrolled during the academic years 2001-2005 and who, in terms of the
judgment, are eligible to appear at the test to be conducted by AICTE, direct:-
a] All such candidates, who wish to appear at the forthcoming test to
be conducted by AICTE in May-June 2018 and who exercise option to
appear at the test in terms of the judgment, can retain the degrees in
11
question and all the advantages flowing therefrom till one month after the
declaration of the result of such test or till 31.07.2018 whichever is
earlier.
b] This facility is given as one-time exception so that those who have
the ability and can pass the test in the first attempt itself, should not be
put to inconvenience. If the candidates pass in such first attempt, they
would be entitled to retain all the advantages. But if they fail or choose
not to appear, the directions in the judgment shall apply, in that the
degrees and all advantages shall stand suspended and withdrawn. At the
cost of repetition, it is made clear that no more such chances or
exceptions will be given or made. They will undoubtedly be entitled to
appear on the second occasion in terms of the judgment but this
exception shall not apply for such second attempt.
c] We direct AICTE to conduct the test in May-June 2018 and declare
the result well in time, in terms of our directions in the judgment and this
Order. AICTE shall however extend the time to exercise the option to
appear at the test suitably.
8] Except for the directions given in the preceding paragraph i.e. paragraph
7 and the clarification as regards courses leading to award of diplomas as
mentioned hereinabove, we reject all the other submissions.
12
9] All applications, petitions and writ petitions stand disposed of in
aforesaid terms. No costs.
………………………..J.
(Adarsh Kumar Goel)
…………………..……J.
(Uday Umesh Lalit)
New Delhi,
22nd January, 2018.

caste is determined by birth and the caste cannot be changed by marriage with a person of scheduled caste = Merely because her husband is belonging to a scheduled caste category, the appellant should not have been issued with a caste certificate showing her caste as scheduled caste. In that regard, the orders of the authorities as well as the judgment of the High Court cannot be faulted. However, having regard to the fact that the appellant has already served as a Teacher and Vice-Principal of Kendriya Vidyalaya without any black spot in her service career for about 21 years, and that she is going to retire shortly, we take lenient view by exercising jurisdiction under Article 142 of the Constitution of India and order to convert the order of termination to an order of compulsory retirement. While exercising leniency, we have also kept in mind that the appellant has neither played fraud nor misrepresented before any of the authorities for getting the caste certificate and while continuing in service based on the caste certificate. No questions were raised against her till the complaint in question came to be lodged, even when the authorities had seen the High School Certificate, Marks Sheet etc. showing her caste as Agarwal at the initial stage. Having regard to the totality of the facts of the case, the impugned judgment of the High Court is 5 modified. “The order of termination from service” passed against the appellant shall be treated as “the order of compulsory retirement”. However, we make it clear that this shall not be treated as a precedent in future.

1
 NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO._487 OF 2018
(Arising from SLP(C) No.7181 of 2016)
Sunita Singh ..Appellant
Versus
State of Uttar Pradesh and others ..Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
Leave granted.
2. Judgment dated 21.12.2015 passed by the High Court of
Judicature at Allahabad in Writ-C No. 53689 of 2015, dismissing
the writ petition filed by the appellant and confirming the order of
termination from service passed against the appellant, is called in
question in this appeal.
3. Appellant was born in “Agarwal” family. She married Dr.
Veer Singh, who happens to belong to “Jatav” Community (said to
be one of the Scheduled Castes). A caste certificate dated
29.11.1991 was issued by District Magistrate/Collector,
2
Bulandshahar certifying the appellant as of Scheduled Caste
(Jatav). Based on the academic qualifications and the caste
certificate, she was appointed initially as a Post Graduate Teacher
(Hindi) vide letter dated 16.12.1993 at Kendriya Vidyalaya No.1,
Pathankot, Punjab. During the course of her service, she completed
her M.Ed and served the institution for about 21 years as teacher.
4. A complaint was lodged against the appellant to the effect
that she was born in “Agarwal” family (general caste category) and
after her marriage with a person of scheduled caste, she obtained a
caste certificate in question. After making preliminary verification,
the jurisdictional officer directed to conduct an enquiry in respect of
the caste certificate of the appellant. The Tehsildar vide his order
dated 22/27.6.2013 cancelled the caste certificate of the appellant
and asked the appellant to return the caste certificate issued earlier
to the appellant.
City Magistrate, Bulandshahar vide letter dated
18.07.2013 communicated to the Deputy Commissioner, Kendriya
Vidyalaya Sangathan that the caste certificate issued to the
appellant treating her as “Jatav” has been cancelled. Subsequently,
the appellant made a representation to District Magistrate,
3
Bulandshahar on 6.1.2014 requesting him to reconsider the matter
and the said representation came to be dismissed on 3.9.2014 by
District Magistrate, Bulandshahar. The appeal filed by the
appellant against the order of the Tehsildar cancelling her caste
certificate and the order of the District Magistrate dismissing her
representation was also dismissed by the appellate authority i.e.,
Commissioner, Meerut Division, Meerut on 27.12.2014. As a result
of cancellation of the caste certificate, an order was passed by the
Kendriya Vidyalaya Sangathan on 18.03.2015 terminating the
appellant from the services of Kendriya Vidyalaya Sangathan. The
appeal filed by the appellant before the State Level Committee
against the order of the appellate authority cancelling her caste
certificate also came to be dismissed on 15.05.2015. The
appellant’s further efforts of approaching the High Court by filing
the writ petition also failed, inasmuch as the High Court dismissed
the writ petition by the impugned judgment. Hence, this appeal.
5. There cannot be any dispute that the caste is determined
by birth and the caste cannot be changed by marriage with a
person of scheduled caste. Undoubtedly, the appellant was born in
“Agarwal” family, which falls in general category and not in
4
scheduled caste. Merely because her husband is belonging to a
scheduled caste category, the appellant should not have been
issued with a caste certificate showing her caste as scheduled caste.
In that regard, the orders of the authorities as well as the judgment
of the High Court cannot be faulted.
However, having regard to the fact that the appellant has
already served as a Teacher and Vice-Principal of Kendriya
Vidyalaya without any black spot in her service career for about 21
years, and that she is going to retire shortly, we take lenient view by
exercising jurisdiction under Article 142 of the Constitution of India
and order to convert the order of termination to an order of
compulsory retirement. While exercising leniency, we have also
kept in mind that the appellant has neither played fraud nor
misrepresented before any of the authorities for getting the caste
certificate and while continuing in service based on the caste
certificate. No questions were raised against her till the complaint in
question came to be lodged, even when the authorities had seen the
High School Certificate, Marks Sheet etc. showing her caste as
Agarwal at the initial stage. Having regard to the totality of the
facts of the case, the impugned judgment of the High Court is
5
modified. “The order of termination from service” passed against
the appellant shall be treated as “the order of compulsory
retirement”. However, we make it clear that this shall not be
treated as a precedent in future.
6. The appeal stands disposed of in the aforesaid terms. No
order as to costs.
 ………………………………………………..J.
 [ARUN MISHRA]
 ......…………………………………………..J.
 [MOHAN M. SHANTANAGOUDAR]
NEW DELHI;
JANUARY 19, 2018.