questioning the constitutional validity of Rule 3(1)(c) of the Medical Colleges and Dental Colleges of Assam (Regulations of Admission into 1st year MBBS/BDS Courses) Rules, 2017 (in short referred to as ‘the Rules of 2017’). = Rule 3 of the Rules of 2017 provides for eligibility for the State quota seats. Same is extracted hereunder : “Rule 3 – Eligibility for State Quota Seats: The following conditions must be fulfilled:­ 1.(a) The candidate must be a citizen of India. (b) The candidate must be a permanent citizen of Assam. The father/ mother or the candidate must be residing in the State of Assam continuously for not less than a period of 20 years. (The certificate at Annexure – I in Application Form at Schedule – I of these rules must be submitted if a candidate is called for counseling): Provided that this shall not be applicable to the sons/ daughters of officers of All India Services allotted to Assam (certificate regarding the service of father/ mother of the candidate from the concerned authority/department of Government of Assam must be submitted if a candidate is called for counseling. (c) The candidate must study in all the classes from class VII to XII in the State of Assam and must pass the Qualifying Examination or its equivalent examination from any Institute situated in the State of Assam. (Certificate at Annexure­II in Application Form at Schedule – I of these rules must be submitted if a candidate is called for counseling.) 2 Provided that if a candidate studies outside Assam from Class – VII onwards because his/her father/ mother is posted outside Assam as a Assam State Government Employee or as a Central Government employee or as an employee of a Corporation/ Agency/ instrumentality under Government of Assam or Central Government whether on deputation or transfer or regular posting then the period for which the said father/mother is working outside the State shall be relaxable for such candidate. (Certificate of employment of father/mother outside the State indicating the period of service from the concerned authority must be submitted if a candidate is called for counseling.) (d) Candidate’s age should not be below 17 years and above 25 years of age on the 31st December of the year in which the admission is sought for: Provided that the maximum age limit is relaxable by 3 years in case of candidates belonging to SC/ST(P)/ST(H)/ OBC/MOBC category.”= Rule 3(1)(c) of the Rules of 2017 is in consonance with the spirit of Article 14 of the Constitution of India. The writ petitions/SLP deserve dismissal and the same are hereby dismissed. Parties to bear their own costs.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION [C] NO. 766 OF 2018
RAJDEEP GHOSH … PETITIONER
VERSUS
STATE OF ASSAM & ORS. … RESPONDENTS
WITH
WRIT PETITION [C] NO. 795/2018
WRIT PETITION [C] NO. 831/2018
WRIT PETITION [C] NO. 768/2018
WRIT PETITION [C] NO. 763/2018
S.L.P. [C] No. 16200/2018,
WRIT PETITION [C] NO. 758/2018,
WRIT PETITION [C] NO. 771/2018,
WRIT PETITION [C] NO. 767/2018,
WRIT PETITION [C] NO. 759/2018,
WRIT PETITION [C] NO. 765/2018,
WRIT PETITION [C] NO. 760/2018,
WRIT PETITION [C] NO. 776/2018,
WRIT PETITION [C] NO. 781/2018,
WRIT PETITION [C] NO. 780/2018,
WRIT PETITION [C] NO. 813/2018,
WRIT PETITION [C] NO. 835/2018,
WRIT PETITION [C] NO. 800/2018,
WRIT PETITION [C] NO. 812/2018
AND
WRIT PETITION [C] NO. 821/2018.
J U D G M E N T
ARUN MISHRA, J.
1. The writ petitions have been preferred under Article 32 of the
Constitution of India questioning the constitutional validity of Rule
1
3(1)(c)   of   the   Medical   Colleges   and   Dental   Colleges   of   Assam
(Regulations of Admission into 1st  year MBBS/BDS Courses) Rules,
2017 (in short referred to as ‘the Rules of 2017’). The petitioners have
come with the case that though State can provide for preference in the
matter of admission, however, such classification must be based upon
objective criteria and must have a rational nexus with the objective it
seeks to achieve.
2. Rule 3 of the Rules of 2017 provides for eligibility for the State
quota seats. Same is extracted hereunder :
“Rule 3 – Eligibility for State Quota Seats:
The following conditions must be fulfilled:­
1.(a) The candidate must be a citizen of India.
(b) The candidate must be a permanent citizen of
Assam.   The father/ mother or the candidate must
be residing in the State of Assam continuously for
not less than a period of 20 years.  (The certificate at
Annexure – I in Application Form at Schedule – I of
these   rules   must   be   submitted   if   a   candidate   is
called for counseling): 
Provided   that   this   shall   not   be   applicable   to   the
sons/   daughters   of   officers   of   All   India   Services
allotted to Assam (certificate regarding the service of
father/ mother of the candidate from the concerned
authority/department of Government of Assam must
be submitted if a candidate is called for counseling.
(c) The candidate must study in all the classes from
class VII to XII in the State of Assam and must pass
the   Qualifying   Examination   or   its   equivalent
examination from any Institute situated in the State
of Assam.  (Certificate at Annexure­II in Application
Form   at   Schedule   –   I   of   these   rules   must   be
submitted if a candidate is called for counseling.)
2
Provided that if a candidate studies outside Assam
from Class – VII onwards because his/her father/
mother is posted outside Assam as a Assam State
Government Employee or as a Central Government
employee   or   as   an   employee   of   a   Corporation/
Agency/   instrumentality   under   Government   of
Assam   or   Central   Government   whether   on
deputation or transfer or regular posting then the
period for which the said father/mother is working
outside   the   State   shall   be   relaxable   for   such
candidate.     (Certificate   of   employment   of
father/mother outside the State indicating the period
of   service   from   the   concerned   authority   must   be
submitted if a candidate is called for counseling.) 
(d) Candidate’s age should not be below 17 years and
above 25 years of age on the 31st  December of the
year in which the admission is sought for:
Provided that the maximum age limit is relaxable by
3   years   in   case   of   candidates   belonging   to
SC/ST(P)/ST(H)/ OBC/MOBC category.”
3. The   petitioners   have   questioned   aforesaid   Rule   3(1)(c)   which
requires that a candidate must study in all the classes from Class VII
to XII in the State of Assam and must pass the qualifying examination
or its equivalent examination from any Institute situated in the State
of Assam. The exception has been carved out in case father or mother
is posted outside Assam as an Assam State Government employee or
Central   Government   employee   or   as   an   employee   of   a
Corporation/Agency/instrumentality under the Government of Assam
or Central Government.
4. The  petitioners  submit  that  they  have  not  passed  Class  XII.
Some of the petitioners have not passed both Class XI and Class XII.
They are residents of the State of Assam. They claim that they have
3
studied in Assam for sufficient period. However, they are not eligible
as per the aforesaid criteria prescribed under Rule 3(1)(c) of the Rules
of 2017.
5. The petitioners have urged that classification made is violative of
Article  14. No  expert study has  been  done so as  to  find out the
candidates who have studied from Class VII to XII outside the State of
Assam are likely not to serve the State after they acquire their MBBS
degree. In the absence of such study and collection of material, the
action is unsustainable and is not in accordance with the law laid
down in Dr. Jagadish Saran & Ors. v. Union of India (1980) 2 SCC 768.
As the parents of the petitioner are permanent residents of State of
Assam and fulfill other conditions of eligibility, denial of State­quota
seats only on the ground that they have completed their class XI and
XII from outside the State of Assam, is clearly irrational, unreasonable
and arbitrary. The State Government obtains a bond agreement to
serve the State for a period of 5 years or render one year of rural
service on completion of the MBBS course and in case of breach, to
pay a sum of Rs.30 lakhs to the Government as compensation. While
a student is admitted in the MBBS course that would ensure the
incumbent would serve the State as provided in bond after passing out
MBBS. Considering the provisions contained in Rule 15 of the Rules of
2017, the requirement of study in educational institution/s in the
State, as provided in Rule 3(1)(c) has to be construed as directory and
4
not mandatory.   The classification made is a hostile one and is not
based   on   any  intelligible   differentia.   In  case   any  parent  is   in   the
employment of other State Government and is serving in the other
State or in the case of a person, his parent is doing a private job
outside, could not have been discriminated and ought to have been
kept at par in the excepted category as provided in Rule 3(1)(c) as
Central Government or State Government servant.
6. The petitioners have submitted that the admission rules framed
by the State Government have undergone changes from time to time.
In the Rules of 2007, Rule 3(2)(c) provided for 4 years schooling in
Assam either in (i) HSLC or (ii) HSLC and HSSLC stages combined as
an eligibility condition for appearing in the qualifying examination.
The proviso to the said rule, however, relaxed the above condition in
case the father or the mother of the candidate have completed their
schooling in the State for a minimum of 4 years in HSLC level.
7. Rule   3(1)   of   the   2015   Rules   provided   the   following   eligibility
conditions:
(a) The candidate must be a citizen of India.
(b)
(c) The   candidate   must   be   a   permanent   resident   of
Assam.   The candidate or his/ her father/ mother
must be residing in the State of Assam continuously
for not less than a period of 20 years.  (The original
PRC certificate at Annexure – I in Application form B
at Schedule – I of these rules must be submitted if a
candidate is called for counseling):
Provided   that   this   shall   not   be   applicable   to   the
sons/   daughters   of   officers   of   All   India   Services
5
allotted to Assam (certificate regarding the service of
father/ mother of the candidate from the concerned
authority/   department   of   Government   of   Assam
must   be   submitted   if   a   candidate   is   called   for
counseling.)
(d) The candidate including sons/ daughters of officers
of All India Services must study in all classes from
class VII to XII in the State of Assam and must pass
the   Qualifying   Examination   from   the   Institutes
situated   in   the   State   of   Assam.   (Certificate   at
Annexure­II in Application Form B at Schedule­I of
these   rules   must   be   submitted   if   a   candidate   is
called for counseling.)
Provided that if a candidate studies outside Assam
from Class – VII onwards because his/ her father/
mother   is   posted   outside   Assam   as   a   State
Government employee on deputation or transfer or
regular  posting  then   the  period   for  which  father/
mother   is   working   outside   the   State   shall   be
relaxable   for   such   candidate.     (Certificate   of
employment   of   father/   mother   outside   the   State
indicating the period of service must be submitted if
a candidate is called for counseling.)”
In 2016 “Rule 3(1)(c) was amended as follows:
(c)   The   candidate,   including   sons/   daughters   of
Officers   of   All   India   Services,   must   study   in   all
classes from class VI to X in the State of Assam and
must pass the HSLC or its equivalent examination
conducted   by   the   Government   recognized   Board/
Council from any institute situated in the State of
Assam   (Certificate   at   Annexure­II   in   Application
Form   B   at   Schedule   –   I   of   these   rules   must   be
submitted if a candidate is called for counselling).”
8. The   petitioners   have   further   submitted   that   Rule   3(1)(c)   as
amended in 2016, was questioned before the Guwahati High Court
and it was struck down. It was declared to be irrational and violative
of Article 14 of the Constitution of India. The review petition was also
filed and the same was dismissed. Thereafter, Rules of 2017 have been
6
enacted prescribing the aforesaid criteria of study in Rule 3(1)(c). In
February 2018, NEET examination was conducted on all India basis
for admission in any medical college including dental colleges and
Ayurvedic colleges and the result of NEET has been declared. Notice
for counseling was issued on 22.6.2018. Pursuant thereto counseling
was held on 29.6.2018. As per the NEET position, the petitioners
claimed that they were entitled to admission. However, it was not
given to them owing to not fulfilling the irrational criteria under Rule
3(1)(c).
9. In the counter affidavit filed by the State of Assam in W.P. [C]
No.758/2018, it was contended that in the Rules of 2007 requirement
of   4   years   of   school   education   between   6th  to   12th  standard   was
necessary   in   the   State   of   Assam.   Having   regard   to   the   level   of
backwardness, inadequate development, lack of adequate number of
doctors to provide services all over the State of Assam including in the
remote areas, it was considered to be quintessential to ensure that
admissions   in   medical   MBBS   courses   in   the   Government   medical
colleges   do   become   available   to   bona   fide   candidates   of   Assam
belonging to the State. The rules were amended in the year 2015 and
the requirement of 6 years of schooling was introduced between 7th to
12th standard in the State of Assam. The other two requirements were
that the candidate must be a permanent resident of State of Assam
and the candidate or his/her father/mother must be residing in the
7
State of Assam continuously for a minimum period of 20 years. This
amendment was notified. It was known to all concerned that there is a
requirement of undertaking the study in the schools of State of Assam.
Thus, after having taken a conscious decision to exercise their choice
to study class XI and XII, in schools outside the State of Assam, they
cannot stake the claim that they should be considered eligible for
admission in the MBBS course in Government colleges in the State of
Assam as against State quota seats. The petitioners do not fulfill the
criteria.
10. The amendment of 2016 made in Rule 3(1)(c) was challenged
before   the   High   Court   of   Guwahati.   The   provisions   of   2016   were
different and in the review application, the High Court had observed
that   the   State   can   lay   down   any   reasonable   eligibility   criteria   of
domicile   for   admission   under   the   State   quota   seats   for   medical
courses in the State of Assam. It is contended that the State can lay
down the criteria of institutional preference or number of years of
study  in  the  State.  Thereafter,  the  amendment  in  rules  has   been
made. 
11. Rules of 2017 prescribe 6 years of schooling from Class VII to
Class XII in the State of Assam. Other requirements being that the
candidate must be a permanent resident and father/mother must be
residing in the State continuously for 20 years. Rule 15 provides for a
8
bond to be filed containing the aforesaid stipulation. The High Court
has   upheld   the   validity   of   the   rule   by   judgment   dated   2.8.2017.
Special   leave   petition   was   preferred   against   the   same   judgment.
Special leave petition was disposed of and was not decided on merits
as admissions already made were not to be disturbed after the lapse of
time frame. The petitioners were fully aware while they were taking
instructions outside the State that they could not be eligible to stake
their claim in the State quota seats in the State of Assam.  They have
not questioned the rule before appearing for NEET examination. The
stipulation of pursuing the study from Class VII to Class XII in the
State of Assam has been provided with the object that the candidates
stay back in the State of Assam after completion of their studies to
serve   the   State   and   its   requirement.   The   stipulation   made   is
constitutionally valid and is in the best interest of the State. Having
regard to the limited resources available at the State’s disposal, the
provision is constitutional and legal. It is necessary for the State of
Assam to have the doctors to take care of its inhabitants in the farflung
northeast area.
12. Education is a State subject and one of the Directive Principles
enshrined in Part IV of the Constitution is that the State should make
effective provisions for education within the limits of its economy.
Concession   given   to   the   residents   of   the   State   in   the   matter   of
admission is obviously calculated to serve their interest as presumably
9
some of them may after passing out of the college, settle down as
doctors   and   serve   the   needs   of   the   locality.   The   classification   is
reasonable and has a correlation with the object to be achieved by the
legislation and is not amenable to challenge. A similar stipulation in
the case of other States has been upheld by this Court. Law has been
settled by this Court as to the MBBS/BDS courses.
13. It was submitted by learned senior and other counsel appearing
on behalf of the petitioners that classification made in Rule 3(1)(c) of
the Rules of 2017 is violative of Article 14, arbitrary and unreasonable.
The condition of obtaining education from Class VII to XII in the State
of Assam is wholly uncalled for, for obtaining a better education and
the students usually go out of the State. The state could not have
deprived them of staking their claims against the State­quota seats in
the medical colleges in Assam. It was also urged that the coaching
facilities are not available in the State of Assam, as such some of the
students have obtained admission outside, due to coaching facilities
available in other States. Thus, it could not be said to be reasonable to
impose a rider of obtaining an education of Class XI and XII in State of
Assam   only.   It   was   further   urged   that   the   parents   of   certain
candidates/petitioners   are   in   the   Government   service   of   other
adjoining States such as Arunachal Pradesh. Their wards have also
been deprived of admission as they have obtained the education from
the place where their parents are staying in other States. Thus, the
10
classification   made   is   unreasonable   and   arbitrary.   It   was   also
submitted that distinction could not have been made between the
Government employment and private employment and in case parents
are also in private employment outside the State and the students are
obtaining education in other States where their parents are residing,
they   ought   not   to   have   been   ousted   from   the   eligibility   criteria
prescribed in Rules 3(1)(c). Thus, the same deserves to be struck
down. 
14. Mr. Maninder Singh, learned ASG and Mr. Nalin Kohli, learned
AAG   and   other   learned   counsel   appearing   on   behalf   of   the
respondents supported the rule. It was submitted that it was open to
the State Government to make such a provision. The same has been
enacted in order to enable the students to obtain an education in the
State of Assam who are otherwise also residents of Assam and in order
to ensure that after obtaining the education, they cater to the needs of
the State of Assam. There is a dearth of doctors. Thus, the provision
could   have   been   made   providing   reservation   on   the   ground   of
residence  and  education   in  the  State,  otherwise,  the  classification
made is reasonable. Provision has been made for the employees of the
State of Assam or the Central Government employees or the employees
of   the   Corporation/agency/instrumentalities   or   who   are   posted
outside on deputation etc. The relaxation has been given to them. The
classification   of   obtaining   the   education   that   has   been   made   is
11
reasonable.   Besides   that,   its   aim   has   a   rational   nexus   with   the
objective sought to be achieved by serving the populace of the State of
Assam. The students who have obtained education outside the State
are not likely to stay in Assam. The provision of Rule 15 regarding
furnishing of bond requiring the MBBS students to serve the State for
5 years or to pay Rs.30 lakhs in case of default cannot be said to be
an   adequate   safeguard,   as   such   provision   for   such   reservation   is
permissible to be made with respect to the seats of State quota. They
are required to be fulfilled as per the eligibility criteria prescribed by
the Government.
15. The main question for consideration is whether the classification
that   has   been   made   in   Rule   3(1)(c)   to   the   Rules   of   2017   is
unreasonable and violative of the provisions contained in Article 14 of
the   Constitution   of   India   and   students   passing   out   or   obtaining
education   in   other   States   in   the   aforesaid   exigencies   have   been
illegally ousted from the eligibility criteria prescribed for seats of State
quota.
16. A bare reading of Rule 3(1)(c) makes it clear that the requirement
is   multi­fold.   Firstly,   the   candidate   must   be   a   citizen   of   India,
secondly, he/she must be a permanent citizen of Assam and for that
father/mother or the candidate must be residing in the State of Assam
continuously for not less than a period of 20 years. The exception has
12
been carved out with respect towards of the employees of all­India
services allotted to Assam. The third requirement is that the candidate
must study in all the classes from class VII to XII in the State of
Assam and must pass a qualifying examination equivalent from an
institution situated in Assam. Exception has been carved out in favour
of such candidates whose parents are posted, his/her father or mother
is posted outside the State of Assam as Assam State Government
employee or as Central Government employee or as the employee of
Corporation/Agency/instrumentality under the Government of Assam
or Central Government, on deputation, transfer or regular posting.
The   exception   has   been   given   for   the   period   father   or   mother   is
working outside the State, besides the eligibility criteria prescribing
the age of the candidate to be between 17 and 25 years. Three years’
relaxation has been given to SC/ST(P)/ST(H)/OBC category in the
maximum age limit.
17. Before dwelling upon the rival submissions, it is appropriate to
take note of the various decisions referred to at Bar.  In D.P. Joshi v.
State of Madhya Bharat & Anr., AIR 1955 SC 334, the student who
was   a   resident   of   Madhya   Bharat   was   obtaining   an   education   in
Indore in Malwa region in a medical college. There was discrimination
with   respect   to   the   fees.   This   Court   had   observed   that   the
classification to help the students who are residents of Madhya Bharat
13
was made with the legitimate and laudable objective to encourage
education within its borders. The Court has observed:
“15.   The object of the classification underlying the
impugned   rule   was   clearly   to   help   to   some   extent
students who are residents of Madhya Bharat in the
prosecution of their studies, and it cannot be disputed
that it is quite a legitimate and laudable objective for a
State   to   encourage   education   within   its   borders.
Education is a State subject, and one of the directive
principles declared in Part IV of the Constitution is that
the   State   should   make   effective   provisions   for
education within the limits of its economy. (Vide article
41).   The State has to contribute for the upkeep and
the running of its educational institutions.
We   are   in   this   petition   concerned   with   a   Medical
College,   and   it   is   well­known   that   it   requires
considerable finance to maintain such an institution. If
the State has to spend money on it, is it unreasonable
that it should so order the educational system that the
advantage of it would to some extent at least enure for
the   benefit   of   the   State?  A   concession   given   to   the
residents of the State in the matter of fees is obviously
calculated to serve that end, as presumably some of
them  might,   after passing  out  of  the   College,  settle
down as doctors and serve the needs of the locality.
The classification is thus based on a ground which has
a   reasonable   relation   to   the   subject­matter   of   the
legislation and is in consequence not open to attack. It
has been held in The State of Punjab v. Ajaib Singh
and another, AIR 1953 SC 10 (G), that a classification
might validly be made on a geographical basis. Such a
classification would be eminently just and reasonable,
where   it   relates   to   education   which   is   the   concern
primarily of the State. The contention, therefore, that
the rule imposing capitation fee is in contravention of
article 14 must be rejected.”
18. In Kumari N. Vasundara v. State of Mysore & Anr. 1971 (2) SCC
22, this Court considered the Government rules for admission to the
pre­professional course in medical college. Rule 3 of the selection rules
14
prescribed the condition of residence for 10 years. It was held that the
object of the Rules was to ensure imparting medical education to the
best talent available out of the class of persons who were likely to
serve as doctors, the inhabitants of the State of Mysore and the same
does not suffer from the vice of unreasonableness. The Court had
observed:
“7.  In D.P. Joshi v. The State of Madhya Bharat and
Anr., AIR 1955 SC 334, this Court had while upholding
by majority the rules, made by the State of Madhya
Bharat,   for   admission   to   the   Mahatma   Gandhi
Memorial Medical College, Indore, charging capitation
fee from non­Madhya Bharat students laid down that
in   those   rules   the   word   "domicile"   was   used   in   its
popular   sense   conveying   the   idea   of   residence.
Venkatarama Ayyar. J., speaking for the majority said:
“It was also urged on behalf of the respondent
that the word "domicile" in the rule might be
construed not in its technical legal sense, but
in a popular sense  as meaning "residence",
and the following passage in Wharton's Law
Lexicon, 14th Edition, page 344 was quoted as
supporting such a construction:
"By the term 'domicile', in its ordinary
acceptation, is meant the place where a
person   lives   or   has   his   home.   In   this
sense, the place where a person has his
actual   residence,   inhabitancy,   or
commorancy,   is   sometimes   called   his
domicile".
     In Mcmullen v. Wadsworth (1880) 14 A.C.
631,   it   was   observed   by   the   Judicial
Committee that "the word 'domicil' in Article
63 (of the Civil Code of Lower Canada) was
used in the sense of residence, and did not
refer to international domicile". What has to
be   considered   is   whether   in   the   present
context "domicile" was used in the sense of
residence. The rule requiring the payment of a
15
capitation   fee   and   providing   for   exemption
therefrom refers only to bona fide residents
within   the   State.   There   is   no   reference   to
domicile   in   the   rule   itself,   but   in   the
Explanation which follows, Clauses (a) and (b)
refers to domicile, and they occur as part of
the   definition   of   "bona   fide   resident".   In
Corpus Juris Secundum, Volume 28, page 5,
it is stated:
"The   term   'bona  fide   residence'   means
the residence with domiciliary intent."
There is, therefore, considerable force in the
contention of the respondent that when the
rulemaking authorities referred to domicile in
Clauses (a) and (b) they were thinking really of
residence.   In   this   view   also,   the   contention
that   the   rule   is   repugnant   to   Article   15(1)
must fail."
Under the impugned rule, in that case, no capitation
fee was to be charged from the students who were bona
fide residents of Madhya Bharat, and the expression
"bona fide resident" for the purpose of the rule was
defined as (to quote the relevant portion):
“one who is­
(a) a citizen of India whose original domicile is
in   Madhya   Bharat   provided   he   has   not
acquired a domicile elsewhere, or
(b) a citizen of India, whose original domicile is
not in Madhya Bharat but who has acquired a
domicile in Madhya Bharat and has resided
there for not less than 5 years at the date, on
which he applies for admission, or
(c)   a   person   who   migrated   from   Pakistan
before   September  30,   1948,   and   intends   to
reside in Madhya Bharat permanently, or
(d) x x x x.”
In our view, the word "domicile" as used in Rule 3 in
the present case is also used to convey the idea of an
intention to reside or remain in the State of Mysore. If
classification   based   on   residence   does   not   impinge
upon the principle of equality enshrined in Article 14
as   held  by  this  Court  in  the   decision  already  cited
16
which is binding upon us, then the further condition of
the residence in the State being there for at least ten
years would also seem to be equally valid unless it is
shown by the petitioner that selection of the period of
ten years makes the classification so unreasonable as
to render it arbitrary and without any substantial basis
or   intelligible   differentia.   The   object   of   framing   the
impugned   rule   seems   to   be   to   attempt   to   impart
medical education to the best talent available out of the
class   of   persons   who   are   likely,   so   far   as   it   can
reasonably   be   foreseen,   to   serve   as   doctors,   the
inhabitants of the State of Mysore. It is true that it is
not   possible   to   say   with   absolute   certainty   that   all
those   admitted   to   the   medical   colleges   would
necessarily   stay   in   Mysore   State   after   qualifying   as
doctors:   they   have   indeed   a   fundamental   right   as
citizens to settle anywhere in India and they are also
free, if they so desire and can manage, to go out of
India for further studies or even otherwise. But these
possibilities   are   permissible   and   inherent   in   our
Constitutional set­up and these considerations cannot
adversely affect the Constitutionality of the otherwise
valid   rule.   The   problem   as   noticed   in   Minor   P.
Rajendran's case, (1968) 2 SCR 786 and as revealed by
a large number of cases which have recently come to
this Court Is that the number of candidates desirous of
having a medical education is very much larger than
the number of seats available in medical colleges. The
need and demand for doctors in our country is so great
that   young   boys   and   girls   feel   that   in   medical
profession they can both get gainful employment and
serve the people. The State has, therefore, to formulate
with   reasonable   foresight   a   just   scheme   of
classification for imparting medical education to the
available candidates which would serve the object and
purpose of providing broad­based medical aid to the
people of the State and provide medical education to
those who are best suited for such education. Proper
classification   inspired   by   this   consideration   and
selection   on   merit   from   such   classified   groups,
therefore,   cannot   be   challenged   on   the   ground   of
inequality violating Article 14. The impugned rule has
not been shown by the petitioner to suffer from the vice
of unreasonableness. The counter­affidavit filed by the
State, on the other hand, discloses the purpose to be
17
that of serving the interests of the residents of the State
by providing medical aid for them.
8.   The   petitioner's   argument   that   candidates   whose
parents have of necessity to remain out of Mysore State
and who have also by compelling reasons to shift their
residence frequently from one State to another without
completing ten years in any one State, would suffer
because their parents cannot afford to arrange for their
children's   residence   in   Mysore   State   for   ten   years
during the first 17 years of their age, merely suggests
that there is a likelihood of some cases of hardship
under the impugned rule. But cases of hardship are
likely to arise in the working of almost any rule which
may   be   framed   for   selecting   a   limited   number   of
candidates   for   admission   out   of   a   long   list.   This,
however, would not render the rule unconstitutional.
For relief against hardship in the working of a valid
rule, the petitioner has to approach elsewhere because
it relates to the policy underlying the rule. Redress for
the grievance against the wide gap between the number
of seats in the medical colleges and the number of
candidates aspiring to become doctors for earning their
own livelihood and for serving the needs of the country,
is also to be sought elsewhere and not in this Court,
which is only concerned with the constitutionality of
the rule.”
19. In Dr. Pradeep Jain & Ors. v. Union of India & Ors., (1984) 3 SCC
654, the Court has observed that for the MBBS course residence
requirement in a particular State in the matter of admission cannot be
said to be irrational or irrelevant and neither in violation of Article 14.
The Court observed:
“19. It will  be noticed from the above discussion
that though intra­state discrimination between persons
resident in different districts or regions of a State has
by   and   large   been   frowned   upon   by   the   court   and
struck down as invalid as in Minor P. Rajendran's case
(supra)   and   Perukaruppan's   case   (supra),   the   Court
has in D.N. Chanchalas case and other similar cases
up­held   institutional   reservation   effected   through
18
university wise distribution of seats for admission to
medical colleges. The Court has also by its decisions in
D.P. Joshi's case and N. Vasundhara's  case (supra)
sustained   the   constitutional   validity   of   reservation
based on residence within a State for the purpose of
admission to medical college. These decisions which all
relate to admission to MBBS course are binding upon
us and it is therefore not possible for us to hold, in the
face of these decisions, that residence requirement in
at State for admission to MBBS course is irrational and
irrelevant and cannot be introduced as a condition for
admission without violating the mandate of equality of
opportunity contained in Article 14 We must proceed
on the basis that at least so far as admission to MBBS
course is concerned, residence requirement in a State
can be introduced as a condition for admission to the
MBBS course. It is of course true that the Medical
Education   Review   Committee   established   by   the
Government of India has in its report recommended
after taking into account all relevant considerations,
that the "final objective should be to ensure that all
admissions  to  the   MBBS   course   should   be  open   to
candidates on an All India basis without the imposition
of existing domiciliary condition", but having regard to
the practical difficulties of transition to the stage where
admissions   to   MBBS   course   in   all   medical   colleges
would be on All India Basis, the Medical Education
Review Committee has suggested "that to begin with
not less than 25 per cent seats in each institution may
be open to candidates on all India basis." We are not all
sure   whether   at   the   present   stage   it   would   be
consistent with the mandate of equality in its broader
dynamic sense to provide that admissions to the MBBS
course in all medical colleges in the country should be
on   all   India   basis.   Theoretically,   of   course,   if
admissions are given on the basis of all India national
entrance   examination,   each   individual   would   have
equal   opportunity   of   securing   admission,   but   that
would   not   take   into   account   diverse   consideration,
such   as,   differing   level   of   social,   economic   and
educational development of different regions, disparity
in the number of seats available for. admission to the
MBBS course in different States, difficulties which may
be experienced by students from one region who might
in the competition on all India basis get admission to
the MBBS course in another region far remote from
19
their own and other allied factors. There can be no
doubt that the policy of ensuring admissions to the
MBBS course on all India basis is a highly desirable
policy, based as it is on the postulate that India is one
national and every citizen of India is entitled to have
equal opportunity for education and advancement, but
it   is   an   ideal   to   be   aimed   at   and   it   may   not   be
realistically possible, in the present circumstances, to
adopt   it,   for   it   cannot   produce   real   equality   of
opportunity   unless   there   is   complete   absent   of
disparities and inequalities a situation which simply
does not exist in the country today. There are massive
social   and  economic  disparities  and  inequalities  not
only between State and State but also between region
and region within a state and even between citizens
and citizens within the same region. There is a yawning
gap between the rich and the poor and there are so
many disabilities and injustices from which the poor
suffer as a class that they cannot avail themselves of
any opportunities which may in law be open to them.
They do not have the social and material resources to
take advantage of these opportunities which  remain
merely on paper recognised by law but non­existent in
fact.   Students from backward States or regions will
hardly be able to compete with those from advanced
States   or   regions   because,   though   possessing   an
intelligent   mind,   they   would   have   had   no   adequate
opportunities for development so as to be in a position
to compete with others. So also students belonging to
the weaker sections who have not, by reason of their
socially or economically disadvantaged position, been
able to secure education in good schools would be at a
disadvantage compared to students belonging to the
affluent or well­to­do families who have had the best of
school education and in open All India Competition,
they would be likely to be worsted. There would also be
a number of students who, if they do not get admission
in   a   medical   college   near   their   residence   and   are
assigned admission in a far of college in another State
as a result of open All India competition, may not be
able to go to such other college on account of lack of
resources and facilities and in the result, they would be
effectively deprived of a real opportunity for pursuing
the medical course even though on paper they would
have   got   admission   in   medical   college.   It   would   be
tantamount   to   telling   these   students   that   they   are
20
given an opportunity of taking up the medical course,
but if they cannot afford it by reason of the medical
college to which they are admitted being far away in
another State, it is their, bad luck: the State cannot
help it, because the State has done all that it could,
namely, provide equal opportunity to all for medical
education. But the question is whether the opportunity
provided is real or illusory? We are therefore of the view
that a certain percentage of reservation on the basis of
residence   requirement   may   legitimately   be   made   in
Order to equalise opportunities for medical admission
on a broader basis and to bring about real and not
formal,   actual   and   not   merely   legal,   equality.   The
percentage of reservation made on this count may also
include institutional reservation for students passing
the   PUC   or   pre­medical   examination   of   the   same
university or clearing the qualifying examination from
the school system of the educational hinterland of the
medical   colleges   in   the   State   and   for   this   purpose,
there   should   be   no   distinction   between   schools
affiliated to State Board and schools affiliated to the
Central   Board   of   Secondary   Education,   It   would   be
constitutionally permissible to provide, as an interim
measure   until   we   reach   the   stage   when   we   can
consistently   with   the   broad   mandate   of   the   rule   of
equality in the larger sense ; ensure admissions to the
M.B.B.S,   course   on   the   basis   of   national   entrance
examination an ideal which we must increasingly strive
to reach for reservation of a certain percentage of seats
in   the   medical   colleges   for   students   satisfying   a
prescribed residence requirement as also for students
who have passed P.U.C. or pre­medical examination or
any other qualifying examination held by the university
or the State and for this purpose it should make no
difference   whether   the   qualifying   examination   is
conducted by the State Board or by the Central Board
of Secondary Education, because no discrimination can
be   made   between   schools   alleviated   can   be   made
between   schools   affiliated   to   the   Central   Board   of
Secondary Education. We may point out that at the
close of the arguments we asked the learned Attorney
General to inform the court as to what was the stand of
the   Government   of   India   in   the   matter   of   such
reservation   and   the   learned   Attorney   General   in
response to the inquiry made by the Court filed a policy
21
statement which contained the following formulation of
the policy of the Government of India:
Central Government is generally opposed to
the   principle   of   reservation   based   on
domicile or residence for admission to an
institution   of   higher   education,   whether
professional   or   otherwise.   In   view   of   the
territorially articulated nature of the system
of institutions of higher learning including
institutions of professional education, there
is   no   objection,   however,   to   stipulating
reservation or preference for a reasonable
quantum   in   undergraduate   courses   for
students hailing from the school system of
educational   hinterland   of   the   institutions.
For   this   purpose,   there   should   be   no
distinction between school affiliated to State
Board and schools affiliated to CBSE.
We are glad to find that the policy of the Government of
India in the matter of reservation based on residence
requirement and institutional preference accords with
the view taken by us in that behalf. We may point out
that even if at some stage it is decided to regulate
admissions to the M.B.B.S, course on the basis of All
India   Entrance   Examination,   some   provision   would
have to be made for allocation of seats amongst the
selected   candidates   on   the   basis   of   residence   or
institutional affiliation so as to take into account the
aforementioned factors."
20. In  Anant Madaan v. State of Haryana and Ors., (1995) 2 SCC
135,   the   Court   considered   the   validity   of   the   provision   providing
reservation of 85% seats on the basis of candidate’s education for
preceding 3 years in the State along with the requirement of domicile.
The condition was held not to be violative of Article 14. The Court has
observed:
“4. The petitioners before the Punjab and Haryana
High Court had challenged the eligibility conditions of
22
1994 insofar as they require that candidates should
have studied for the 10th, 11th and 12th standards as
regular   candidates   in   recognised   institutions   in
Haryana. They had also challenged the Corrigendum.
The two learned Judges of the Punjab and Haryana
High   Court   who   heard   these   writ   petitions   differed.
Hence the petitions were referred to a third Judge who
concurred with one of the Judges and held that the
condition requiring a candidate to have studied in the
10th, 10+1 and 10+2 classes in recognised institutions
in   Haryana   was   valid.   The   condition   in   the
Corrigendum   which   required   an   affidavit   from   the
parent or guardian of the candidate that the candidate
was not appearing or had not appeared in the entrance
test   of   any   State   or   Union   Territory   was,   however,
struck   down   as   arbitrary   and   unreasonable.   In   the
present appeals, however, we are not concerned with
the Corrigendum.
*** *** ***
8.   In   view   of   the   above   facts,   we   have   to   consider
whether the condition requiring a candidate to have
studied in 10th, 10+1 and 10+2 classes in a recognised
institution in the State of Haryana, can be considered
as arbitrary or unreasonable. It is by now well settled
that preference in admissions on the basis of residence,
as well as institutional preference,   is permissible so
long as there is no total reservation on the basis of
residential or institutional preference. As far back as in
1955, in the case of D.P. Joshi v. The State of Madhya
Bharat and Anr., AIR 1955 SC 334, this Court, making
a distinction between the place of birth and residence,
upheld   a   preference   on   the   basis   of   residence,   in
educational institutions.
9. In the case of Jagadish Saran (Dr) v. Union of India,
(1980) 2 SCR 831, this Court reiterated that regional
preference or preference on the ground of residence in
granting   admission   to   medical   colleges   was   not
arbitrary   or   unreasonable   so   long   as   it   was   not   a
wholesale reservation on this basis. This Court referred
to   various   reasons   why   such   preference   may   be
required.  For  example,  the   residents   of   a  particular
region   may   have   very   limited   opportunities   for
technical education while the region may require such
technically   qualified   persons.   Candidates   who   were
residents of that region were more likely to remain in
23
the region and serve their region if they were preferred
for  admission   to   technical   institutions   in   the   State,
particularly medical colleges. A State which was short
of   medical   personnel   would   be   justified   in   giving
preference to its own residents in medical colleges as
these residents, after qualifying as doctors, were more
likely to remain in the State and give their services to
their State. The Court also observed that in the case of
women students, regional or residential preference may
be justified as their parents may not be willing to send
them   outside   the   State   for   medical   education.   We,
however, need not examine the various reasons which
have   impelled   this   Court   to   uphold   residential   or
institutional   preference   for   admission   to   medical
colleges. The question is settled by the decision of this
Court in Pradeep Jain (Dr) v. Union of India, (1984) 3
SCR 942. This Court has observed, in that judgment:
(SCR p.981: SCC p.687, para 19)
“We are, therefore, of the view that a certain
percentage   of   reservation   on   the   basis   of
residence   requirement   may   legitimately   be
made   to   equalize   opportunities   for   medical
admission on a broader  basis and to bring
about   real   and   not   formal,   actual   and   not
merely   legal,   equality.   The   percentage   of
reservation   made   on   this   count   may   also
include institutional reservation for students
passing the PUC or pre­medical examination
of   the   same   university   or   clearing   the
qualifying examination from the school system
of the educational hinterland of the medical
colleges in the State....”
This Court held in that case that reservation to the
extent of 70% on this basis would be permissible. This
percentage of reservation was subsequently increased
to 85% by this Court in the case of Dinesh Kumar (Dr)
v. Motilal Nehru Medical College,   (1986) 3 SCR 345.
This   Court,   in   that   case,   directed   an   entrance
examination on an All India basis for the remaining
15% of seats.
10. In the present case, the reservation which has been
made on the basis of candidates having studied for the
preceding three years in recognised schools/colleges in
Haryana is in respect of these 85% of seats. It excludes
15% seats which have to be filled in on an. All India
24
basis.   This   eligibility   criterion,   therefore,   is   in
conformity with the decisions of this Court referred to
above. It cannot, therefore, be considered as arbitrary
or   unreasonable   or   violative   of   Article   14   of   the
Constitution.”
21. In Dr. Jagadish Saran and Ors. v. Union of India, (1980) 2 SCC
768, the question arose of the constitutionality of reservation of seats
or quota for local candidates in professional courses. Whether it was
in denial of equal opportunity in higher education. The Court observed
that   the   region   where   the   institution   is   situated   is   a   relevant
consideration for degree courses, but considerations are different, if
the course is on a higher level of specialty, and in case the concession
is apparently discriminatory, the burden of proof is on the respondentState.
Where the data, facts, and figures are insufficient the court
would be reluctant to rule unconstitutionality and pass consequential
orders if its effect is to be wide­ranging involving policy matters. The
Court has observed that ‘equal protection of the laws’ for full growth is
guaranteed,   apart  from ‘equality  before  the  law’.    Even  so  in  our
imperfect society, some objective standards like common admission
tests   are   prescribed   to   measure   merit,   without   subjective
manipulation   or   university­wise   invidiousness.   The   Court   has
observed   that   preference   can   be   given   to   the   students   of   the
University. That strategy ensures the probability of their serving the
backward people for whom medical courses were opened. The Court
held:
25
“20. Again, if the State finds that only students from
the backward regions, when given medical graduation,
will care to serve in that area, drawn towards it by a
sense  of belonging, and those from outside will, on
graduation, leave for the cities or their own regions, it
may evolve  a  policy of  preference  or  reservation  for
students of that University. That strategy ensures the
probability  of   their   serving   the   backward   people   for
whose benefit the medical courses were opened. Such
measures which make for equality of opportunity for
medical education and medical service for backward
human   sectors   may   be   constitutionalised   even   by
Articles 14 and 15. But it must be remembered that
exceptions cannot over­rule the rule itself by running
riot or by making reservations as a matter of course, in
every university and every course. For instance, you
cannot wholly exclude meritorious candidates as that
will promote sub­standard candidates and bring about
a fall in medical competence, injurious, in the long run,
to the very region. It is no blessing to inflict quacks and
medical  midgets  on   people  by  wholesale  sacrifice   of
talent   at   the   threshold.   Nor   can   the   very   best   be
rejected from admission because that will be a national
loss and the interests of no region can be higher than
those   of   the   nation.   So,   within   these   limitations,
without going into excesses, there is room for play of
the State's policy choices.
*** *** ***
27.   The conclusion that we reach from this ruling
which adverts to earlier precedents on the point is that
university­wise   preferential   treatment   may   still   be
consistent   with   the   rule   of   equality   of   opportunity
where   it   is   calculated   to   correct   an   imbalance   or
handicap and permit equality in the larger sense.
*** *** ***
32.   If university­wise classification for post­graduate
medical   education   is   shown   to   be   relevant   and
reasonable   and   the   differential   has   a   nexus   to   the
larger goal of equalisation of educational opportunities
the vice of discrimination may not invalidate the rule.
*** *** ***
40.  Coming to brass tacks, deviation from equal marks
will meet with approval only if the essential conditions
26
set   out   above   are   fulfilled.   The   class   which   enjoys
reservation   must be educationally  handicapped.  The
reservation   must   be   geared   to   getting   over   the
handicap. The rationale of reservation must be in the
case of medical students, removal of regional or class
inadequacy   or   hike   disadvantage.   The   quantum   of
reservation   should   not   be   excessive   or   societally
injurious, measured by the overall competency of the
end­product, viz. degree­holders. A host of variables
influence the quantification of the reservation. But one
factor deserves great emphasis. The higher the level of
the specialty the lesser the role of reservation. Such
being the pragmatics and dynamics of social justice
and equal rights, let us apply the tests to the case on
hand.
*** *** ***
44.   Secondly, and more importantly, it is difficult to
denounce  or  renounce  the   merit  criterion   when   the
selection is for post­graduate or post­doctoral courses
in specialised subjects. There is no substitute for sheer
flair, for creative talent, for fine­tuned performance at
the difficult heights of some disciplines where the best
alone is likely to blossom as the best. To sympathise
mawkishly with the weaker sections by selecting substandard
candidates is to punish society as a whole by
denying   the   prospect   of   excellence   say   in   hospital
service.   Even   the   poorest,   when   stricken   by   critical
illness, needs the attention of super­skilled specialists,
not humdrum second­rates. So it is that relaxation on
merit, by over­ruling equality and quality altogether, is
a social risk where the stage is post­graduate or postdoctoral.”
22. The Court also observed that law is no absolute logic but the
handmaid of current social facts of life.   This Court has held that
considerations are different for the MBBS Course which is the basic
course and the selection for postgraduate or post­doctoral courses in
specialised subject.  It also observed that it was permissible to provide
reservation   in   basic   courses   like   MBBS   course,   but   it   would   be
27
different if such reservation is made for super­skill specialities. The
Court  has  laid   down  such  reservation   is   permissible  in   the  basic
MBBS degree course, not postgraduate or post­doctoral courses.
23. A Constitution Bench of this Court in Saurabh Chaudri & Ors. v.
Union of India & Ors. (2003) 11 SCC 146 considered the question of
reservation for postgraduate courses in medical colleges by providing
an institutional preference. With a majority, the Court observed that
the expression ‘place of birth’ is not synonymous with the expression
‘domicile’ and they reflect two different concepts. The term ‘place of
birth’   appears   in   Article   15(1)   but   not   domicile.   The   question   of
whether a reservation on the basis of domicile is impermissible in
terms   of   Article   15(1),   was   answered   in   the   negative.   The   strict
scrutiny test or the intermediate scrutiny test applicable in the United
States of America cannot be applied. Such a test is not applied in
Indian courts. Such a test may be applied in a case where by reason of
a   statute   the   life   and   liberty   of   a   citizen   is   in   jeopardy.   The
constitutionality of a statute is to be presumed and the burden to
prove contra is on him who asserts the thing. The courts always lean
against   a   construction   which   reduces   the   statute   to   a   futility.   A
statute or any enacting provision therein must be so construed as to
make   it   effective   and   operative   on   the   principle   expressed   in   the
maxim ut res magis valeat quam pereat i.e., it is better for a thing to
have an effect than to be made void.  Even applying the said test, it
28
was   observed   that   it   could   not   be   held   that   the   institutional
reservation should be done away with, having regard to the presentday
scenario. The lawmakers cannot shut their eyes to the local needs
also. The local needs must receive due consideration keeping in view
the duties of the State contained in Articles 41 and 47. The reservation
by institutional preference is not ultra vires Article 14. The hardship of
a few cannot be the valid basis for determining the validity of any
statute. The Court observed:
“65.   Hence,   we   may   also   notice   the   argument,
whether   institutional   reservation   fulfills   the
aforementioned criteria or not must be judged on the
following: ­
1. There is a presumption of constitutionality;
2. The burden of proof is upon the writ petitioners as
they   have   questioned   the   constitutionality   of   the
provisions;
3.   There   is   a   presumption   as   regard   the   State's
power on extent of its legislative competence;
4.   Hardship   of   few   cannot   be   the   basis   for
determining the validity of any statute.
*** *** ***
67. This   Court   may,   therefore,   notice   the
following:
(i) The State runs the Universities.
(ii)   It   has   to   spend   a   lot   of   money   in   imparting
medical education to the students of the State.
(iii)   Those   who   get   admission   in   Post   Graduate
Courses   are   also   required   to   be   paid   stipends.
Reservation of some seats to a reasonable extent,
thus, would not violate the equality clause.
29
(iv) The criteria for institutional preference has now
come to stay. It has worked out satisfactorily in most
of the States for last about two decades.
(v) Even those States which defied the decision of
this Court in Dr. Pradeep Jain's case (supra) had
realized the need for institutional preference.
(vi) No sufficient material has been brought on record
for  departing   from   this   well­established   admission
criteria.
(vii)   It   goes   beyond   any   cavil   of   doubt   that
institutional preference is based on a reasonable and
identifiable   classification.   It   may   be   that   while
working out the percentage of reservation invariably
some   local   students   will   have   preference   having
regard to the fact that domicile/residence was one of
the   criteria   for   admission   in   MBBS   Course.   But
together with the local students 15%, students who
had   competed   in   all   India   Entrance   Examination
would   also   be   getting   the   same   benefit.   The
percentage of students who were to get the benefit of
reservation by way of institutional preference would
further go down if the decision of this Court in Dr.
Pradeep Jain's case (supra) is scrupulously followed.
(viii) Giving of such a preference is a matter of State
policy which can be invalidated only in the event of
being violative of Article 14 of the Constitution of
India.
(ix)   The   students   who   would   get   the   benefit   of
institutional preference being on identifiable ground,
there is hardly any scope for manipulation.
*** *** ***
70. We,   therefore,   do   not   find   any   reason   to
depart from the ratio  laid down  by this Court in
Dr. Pradeep Jain (supra). The logical corollary of our
finding   is   that   reservation   by   way   of   institutional
preference must be held to be not offending Article
14 of the Constitution of India.”
30
24. Reliance has also been placed on certain observations made in
Dr.
Pradeep Jain (supra) thus :
“13.  We may now proceed to consider what are the
circumstances in which departure may justifiably be
made from the principle of selection based on merit.
Obviously, such departure can be justified only on
equality­oriented   grounds,   for   whatever   be   the
principle of selection followed for making admissions
to   medical   colleges,   it   must   satisfy   the   test   of
equality.
Now the concept of equality under the Constitution is
a dynamic concept. It takes within its sweep every
process of equalisation and protective discrimination.
Equality must not remain mere idle incantation but
it must become a living reality for the large masses of
people.  In  a  hierarchical  society  with  an   indelible
feudal stamp and incurable actual inequality, it is
absurd   to   suggest   that   progressive   measures   to
eliminate   group   disabilities   and   promote   collective
equality are antagonistic to equality on the ground
the   every   individual   is   entitled   to   equality   of
opportunity   based   purely   on   merit   judged   by   the
marks   obtained   by   him.   We   cannot   countenance
such a suggestion, for to do so would make that
equality   clause   sterile   and   perpetuate   existing
inequalities. Equality of opportunity is not simply a
matter of legal equality. Its existence depends not
merely   on   the   absence   of   disabilities   but   on   the
presence   of   abilities.   Where,   therefore,   there   is
inequality,   in   fact,   legal   equality   always   tends   to
accentuate it. What the famous poet Willian Blanks
said graphically is very true, namely, "One law for
the Lion and the Ox is oppression," Those who are
unequal,   in   fact,   cannot   treated   by   identical
standards; that may be equality in law but it would
certainly   not   be   real   equality.   It   is,   therefore,
necessary to take into account de facto inequalities
which exist in the society and to take affirmative
action by way of giving preference to the socially and
economically   disadvantaged   persons   or   inflicting
handicaps on those more advantageously placed, in
Order to bring about real equality. Such affirmative
action   though   apparently   discriminatory   is
31
calculated to produce equality an a broader basis by
eliminating   de   facto   inequalities   and   placing   the
weaker sections of the community on a footing of
equality   with   the   stronger   and   more   powerful
section,   so   that   each   member   of   the   community,
whatever is his births occupation or social position
may enjoy equal opportunity of using to the full his
natural endowments of physique, of character and of
intelligence.
We   may   in   this   connection   usefully   quote   what
Mathew, J. said in Ahmedabad St. Xavier's College
Society and Anr. v. State of Gujarat   [1975]1 SCR
173.
“...  It is obvious that "equality in law precludes
discrimination of any kind; whereas equality, in
fact,   may   involve   the   necessity   of   differential
treatment   in   Order   to   attain   a   result   which
establishes   an   equilibrium   between   different
situations”
We cannot, therefore, have arid equality which does
not   take   into   account   the   social   and   economic
disabilities and inequalities from which large masses
of people suffer in the country. Equality in law must
produce   real   equality;   de   jure   equality   must
ultimately find its raison d'etre in de facto equality.
The State must, therefore, resort to compensatory
State action for the purpose of making people who
are factually unequal in their wealth, education or
social   environment,   equal   in   specified   areas.   The
State must, to use again the words of Krishna Iyer.
J.   in   Jagdish   Saran's   case   (supra)   weave   those
special facilities into the web of equality which, in an
equitable setting provide for the weak and promote
their   levelling   up   so   that,   in   the   long   run,   the
community at large may enjoy a general measure of
real   equal   opportunity   equality   is   not   negated   or
neglected where special provisions are geared to the
large   goal   of   the   disabled   getting   over   their
disablement consistently with the general good and
individual   merit."  The   scheme   of   admission   to
medical   colleges   may,   therefore,   depart   from   the
principle   of   selection   based   on   merit,   where   it   is
necessary to do so for the purpose of bringing about
32
real equality of opportunity between those who are
unequal’s.
*** *** ***
21.   But, then to what extent can reservation based
on   residence   requirement   within   the   State   or   on
institutional   preference   for   students   passing   the
qualifying examination held by the university or the
state be regarded as constitutionally permissible? it
is not possible to provide a categorical answer to this
question for, as pointed out by the policy statement
of   Government   of   India,   the   extent   of   such
reservation   would   depend   on   several   factors
including opportunities for professional education in
that particular area, the extent of competition, level
of educational  development of the  area and other
relevant factors. It may be that in a State were the
level   of   educational   development   is   woefully   low,
there are comparatively inadequate opportunities for
training in the medical speciality and there is largescale
social and economic backwardness, there may
be justification for reservation of a higher percentage
of seats in the medical colleges in the State and such
higher   percentage   may   not   militate   against   "the
equality mandate viewed in the perspective of social
justice". So many variables depending on social and
economic   facts   in   the   context   of   educational
opportunities would enter into the determination of
the question as to what in the case of any particular
State, should be the limit of reservation based on
residence   requirement   within   the   State   or   on
institutional preference. But, in our opinion, each
reservation should in no event exceed the outer limit
of 70 per cent of the total number of open seats after
taking   into   account   other   kinds   of   reservations
validly   made.   The   Medical   Education   Review
Committee has suggested that the outer limit should
not exceed 75 percent but we are the view that it
would be fair and just to fix the outer limit at 70
percent.   We   are   laying   down   this   outer   limit   of
reservation in an attempt to reconcile the apparently
conflicting claims of equality and excellence. We may
make it clear that this outer limit fixed by us will be
subject to any reduction or attenuation which may
be made by the Indian Medical Council which is the
statutory   body   of   medical   practitioner   whose
33
functional obligations include setting standards for
medical education and providing for its regulation
and coordination. We are of the opinion that this
outer limit fixed by us must gradually over the years
be progressively reduced but that is a task which
would have to be performed by the Indian Medical
Council. We would direct the Indian. Medical Council
to   consider   within   a   period   of   nine   months   from
today whether the outer limit of 70 percent fixed by
us needs to be reduced and if the Indian Medical
Council determines a shorter outer limit, it will be
binding on the States and the Union Territories. We
would   also   direct   the   Indian   Medical   Council   to
subject the outer limit so fixed to reconsideration at
the end of every three years but in no event should
the outer limit exceed 70 percent fixed by us. The
result is that in any event at least 30 per cent of the
open   seats   shall   be   available   for   admission   of
students on all India basis irrespective of the State or
university   from   which   they   come   and   such
admissions shall be granted purely on merit on the
basis of either all India Entrance Exam. or entrance
examination to be held by the State. Of course, we
need not add that even where reservation  on the
basis   of   residence   requirement   or   institutional
preference is made in accordance with the directions
given in this judgment, admissions from the source
or sources indicated by such reservation shall  be
based only on merit, because the object must be to
select the best and most meritorious student from
within such source or sources.”
(emphasis supplied)
25. In Nikhil Himthani v. State of Uttarakhand & Ors.  (2013) 10 SCC
237, the question arose with respect to admission into professional
colleges pertaining to medical and dental colleges in postgraduate and
super   specialty   courses.   It   was   observed   that   merit   cannot   be
compromised   by   making   a   reservation   on   the   basis   of   other
considerations   like   residential   requirement   etc.     The   decisions   in
34
Jagadish Saran (supra) and Pradeep Jain (supra) had been referred to
and it was observed:
“19. Thus, it will be clear from what has been held by
the   three­Judge   Bench   of   this   Court   in   Magan
Mehrotra and Ors. v. Union of India and Ors. (supra)
that no preference can be given to candidates on the
basis   of   domicile   to   compete   for   the   institutional
quota of the State if such candidates have done their
MBBS course in colleges outside the State in view of
the decisions of this Court in Dr. Pradeep Jain and
Ors.   v.   Union   of   India   and   Ors.   (supra).   Hence,
clauses   2   and   3   of   the   Eligibility   Criteria   in   the
Information Bulletin are also violative of Article 14 of
the Constitution.”
26. The aforesaid observations have been made with respect to the
postgraduate course in  respect of  which  the different yardstick of
merit has to be applied. Thus, the decision in Nikhil Himthani (supra)
no way espouses the cause of the petitioners.
27. In  Vishal Goyal & Ors. v. State of Karnataka & Ors. (2014) 11
SCC 456, the question again came up for consideration with respect to
reservation of seats with State quota in postgraduate courses. It was
held   at   the   postgraduate   level   even   partial   reservation   based   on
residence   requirement   is   impermissible.   The   observation   has   been
made the criteria for the postgraduate course does not hold good for
basic MBBS course. Decisions in  Magan Mehrotra v. Union of India
(2003)   11   SCC   186,  Dr.   Pradeep   Jain  (supra),  Saurabh   Chaudri
(supra),  Nikhil   Himthani  (supra)   and   other   decisions   have   been
35
considered and this Court has observed with respect to postgraduate
courses thus:
“11. Mr. Mariarputham is right that in Saurabh
Chaudri v. Union of India (supra), this Court has
held that institutional preference can be given by a
State,   but   in   the   aforesaid   decision   of   Saurabh
Chaudri, it has also been held that decision of the
State   to   give   institutional   preference   can   be
invalidated by the Court in the event it is shown that
the decision of the State is ultra vires the right to
equality Under Article 14 of the Constitution. When
we examine Sub­clause (a) of Clause 2.1 of the two
Information Bulletins, we find that the expression "A
candidate of Karnataka Origin" who only is eligible to
appear for Entrance Test has been so defined as to
exclude a candidate who has studied MBBS or BDS
in an institution in the State of Karnataka but who
does   not   satisfy   the   other   requirements   of   Subclause
(a) of Clause 2.1 of the Information Bulletin
for   PGET­2014.   Thus,   the   institutional   preference
sought to be given by Sub­clause (a) of Clause 2.1 of
the   Information   Bulletin   for   PGET­2014   is   clearly
contrary to the judgment of this Court in Dr. Pradeep
Jain's case (supra).
13. Sub­clause   (a)   of   Clause   2.1   of   the   two
Information   Bulletins   does   not   actually   give
institutional preference to students who have passed
MBBS or BDS from Colleges or Universities in the
State   of   Karnataka,   but   makes   some   of   them
ineligible to take the Entrance Test for admission to
Post Graduate Medical or Dental courses in the State
of   Karnataka   to   which   the   Information   Bulletins
apply.”
28. The ratio of the aforesaid decision in Vishal Goyal (supra) for the
postgraduate course is not attracted to the basic course that is MBBS
course as laid down in the dictum itself. The eligibility criteria for
36
basic MBBS course may be different and can be based on domicile but
not for the postgraduate and post­doctoral courses.
29. Dr. Kriti Lakhina & Ors. v. State of Karnataka & Ors. WP [C] No.
204/2018 decided on 4.4.2018, relied on by petitioners.   The Court
dealt with the case of admissions to postgraduate medical not that of
MBBS/BDS   course.   Thus,   the   provision   made   as   to   institutional
preference was held to be ultra vires Article 14. The decision is of no
applicability with respect to basic MBBS/BDS/Ayurvedic Courses.
30. In E.V. Chinnaiah v. State of A.P. & Ors. (2005) 1 SCC 394, the
Court dealt with respect to extent of reservation for a class based on
the   micro   distinction.   Further   sub­classification   of   the   Scheduled
Castes for providing reservation came up for consideration. The Court
has held that the classification whether permissible or not, must be
judged on the touchstone of the object sought to be achieved. It was
observed:
“39.     Legal   constitutional   policy  adumbrated   in   a
statute  must answer the test of Article 14 of the
Constitution   of   India.   Classification   whether
permissible or not must be judged on the touchstone
of the object sought to be achieved. If the object of
reservation is to take affirmative action in favour of a
class which is social, educationally and economically
backward, the State's jurisdiction while exercising its
executive or legislative function is to decide as to
what extent reservation should be made for them
either in Public Service or for obtaining admission in
educational institutions. In our opinion, such a class
cannot be sub­divided so as to give more preference
37
to a minuscule proportion of the Scheduled Castes in
preference to other members of the same class.”
31. The decision in Deepak Sibal v. Punjab University & Anr. (1989) 2
SCC 145 has also been pressed into service with respect to intelligible
differentia test applied to the facts with respect to private employees.
The said question arose with respect to admission to LL.B. classes.
There   was   the   exclusion   of   private   employees.   Admissions   were
restricted only to Government, semi­Government and employees of
other institutions on two grounds. Firstly, regarding production of
bogus   certificates   of   employment   from   the   private   employers   and
secondly, imparting legal education to the employees of Government,
semi­Government and other institutions.  The Court observed that it
was   not   appropriate   to   exclude   the   employees   of   private
establishments.   The   classification   was   not   based   on   intelligible
differentia. The Court further observed that a classification need not
be   made   with   mathematical   precision   but   if   there   be   little   or   no
difference between the persons or things which have been grouped
together and those left out of the group, in that case, the classification
cannot be said to be a reasonable one. There is no dispute with the
aforesaid proposition with respect to intelligible differentia test laid
down in  E.V. Chinnaiah  (supra) and  Deepak Sibal  (supra). However,
the test to be applied in the instant case is whether the classification
made is violative or irrational or lacks intelligible differentia criteria.
38
32. As held in the aforesaid decisions, it is permissible to lay down
the   essential   educational   requirements,   residential/domicile   in   a
particular State in respect of basic courses of MBBS/BDS/Ayurvedic.
The object sought to be achieved is that the incumbent must serve the
State   concerned   and   for   the   emancipation   of   the   educational
standards of the people who are residing in a particular State, such
reservation has been upheld by this Court for the inhabitants of the
State and prescription of the condition of obtaining an education in a
State.   The   only   distinction   has   been   made   with   respect   to
postgraduate and post­doctoral super specialty course.
33. Rule 3(1)(c) of the Rules of 2017 lays down the requirement of
obtaining education in the State and relaxation has been given to the
wards   of  the  State   Government  employees   or  Central   Government
employees or to an employee of Corporation/Agency/instrumentality
under the Government of Assam or the Central Government, whether
on deputation or transfer on regular posting from obtaining education
from class VII to XII for the period his/her father or mother is working
outside the State. As urged on behalf of the petitioners the employees
of other State Government but residents of Assam, similar relaxation
ought to have been made cannot be accepted. Thus, their exclusion
cannot   be   said   to   be   irrational   and   arbitrary.   The   wards   of   the
employees in the service of other States like Government employees of
39
Arunachal   Pradesh,   in   our   opinion,   form   a   totally   different   class.
When the wards are obtaining education outside and the parents are
working in Arunachal Pradesh as Government employee or elsewhere,
they are not likely to come back to the State of Assam.   As such
Government of Assam holds that they should provide preference to
State   residents/institutional   preference   cannot   be   said   to
unintelligible   criteria   suffering   from   vice   of   arbitrariness   in   any
manner whatsoever, thus, Rule 3(1)(c) framed by the Government of
Assam is based on an intelligible differentia and cannot be said to be
discriminatory and in violation of Article 14.
34. With respect to the private employees also, the submission was
raised   that   wards   of   private   employees   working   outside   the   State
ought to have been placed at the similar footing as that of the wards of
the   State   Government/Central   Government   employees   etc.   In   our
opinion,   when   once   parents   have   moved   outside   in   a   private
employment   and   wards   obtaining   education   outside,   they   are   not
likely   to   come   back,   thus,   their   exclusion   as   afore­stated   footing
cannot be said to be irrational or illegal.
35. It was urged that some of the students may obtain admission in
other States for the purpose of better coaching. Relevant data has not
been placed on record by the petitioners that in Assam coaching is not
available. Apart from that, when they can afford to obtain coaching in
40
other States, they stand on a different footing, they are the one who
belongs to an affluent class who can afford expensive education in
other States and it is not necessary that they should be adjusted in
State quota seat, they can stake claim for All India Quota Seats for the
State of Assam. They can stake their claim with respect to open seats
within   the   State   of   Assam.   The   exclusion   is   not   total   for   them.
However, with respect to the State­quota seats, since it is open to the
State Government to lay down the educational as well as domicile
requirement, incumbents must fulfill the criteria. The criteria so laid
down in Rule 3(1)(c) of Rules of 2017, cannot be said to be ultra vires
of Article 14 of the Constitution of India.
36. In   view   of   the   aforesaid   discussion,   we   find   that   the   writ
petitions/SLP are devoid of substance.   Rule 3(1)(c) of the Rules of
2017 is in consonance with the spirit of Article 14 of the Constitution
of India. The writ petitions/SLP deserve dismissal and the same are
hereby dismissed. Parties to bear their own costs.
……………………………J.
(Arun Mishra)
New Delhi; .…………………………. J.
August 17, 2018. (S. Abdul Nazeer)
41

a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.= Resultantly, the appeal succeeds and is allowed. The prosecution is held to be vitiated because of the infraction of the constitutional guarantee of a fair investigation.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
    CRIMINAL APPEAL NO.1880 OF 2011
MOHAN LAL ....APPELLANT(S)
VERSUS
THE STATE OF PUNJAB      ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The appellant assails his conviction under Section 18 of
the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred as “the NDPS Act”), sentencing him to
rigorous   imprisonment   for   10   years   and   a   fine   of
Rs.1,00,000/­   (Rupees   one   lakh   only),   with   a   default
stipulation.
1
2. An F.I.R. was lodged on 03.02.1997 by PW­1, Chand
Singh, Sub­Inspector of Balianwali Police Station, that while
on   patrol   duty,   he   was   accompanied   by   Darshan   Singh,
Sarpanch   and   Assistant   Sub­Inspector   Balwinder   Singh.
The witness entertained doubts about the appellant upon
seeing him.  PW­4, Shri Rajinder N. Dhoke, IPS, a gazetted
officer, was called and the appellant was searched, leading to
recovery of 4 kg of opium in a bag carried by him.   The
consent memo, Exhibit­ PB was signed by Darshan Singh
and PW­1.  The seized opium was separated into a sample of
20 gm. and 3kg 980 gm.  The specimen seal was prepared by
PW­1   and   after   use,   the   seal   was   handed   over   to   ASI,
Balwinder   Singh.     “Ruqa”   was   prepared   by   PW­1   and
forwarded   to   Balianwali   Police   Station.     PW­3,   Assistant
Sub­Inspector, Darshan Singh registered the formal F.I.R.
and handed over investigation to PW­1.  Upon conclusion of
investigation, the appellant was charge­sheeted, put on trial,
and convicted.
3. Sh. Chanchal Kumar Ganguli, learned counsel for the
appellant submitted that the NDPS Act being a stringent law
2
carrying a reverse burden of proof, there had to be strict
adherence to the law and procedures.  The investigation was
not only required to be fair and judicious, but must also
appear to have been so.  The investigation ought not to be in
a manner leaving a genuine apprehension in the mind of the
accused that it was not fair and bonafide.  No reasons have
been furnished why Darshan Singh and ASI Balwinder Singh
have not been examined by the prosecution.  No explanation
has been furnished by PW­1 why he did not deposit the
seized narcotics in the malkhana.  Likewise, the delay of 9
days   in   sending   the   sample   for   chemical   analysis   also
remains unexplained.  The investigation was fundamentally
flawed.  PW­1, being the informant, he could not have been
the   investigating   officer   himself.   Reliance   was   placed   on
Bhagwan Singh vs. State of Rajasthan, (1976) 1 SCC 15,
Megha  Singh  vs.  State  of  Haryana, 1996 (11) SCC 709,
State   by   Inspector   of   Police,   Narcotics   Intelligence
Bureau,   Madurai,   Tamilnadu   vs.   Rajangam,  2010 (15)
SCC 369.
3
4. Ms. Jaspreet Gogia, learned counsel for the respondent
contended that the appellant was searched in presence of a
Gazetted Officer, PW­4.   The failure to examine Darshan
Singh or ASI Balwinder Singh was inconsequential as the
search and recovery were duly proved by PW­1 and PW­4.
Merely because they were police officers, their evidence does
not stand vitiated. There shall be a presumption that official
duties were regularly performed.   The burden of proof for
innocence lay upon the accused in view of the statutory
presumption under Sections 35 and 54 of the NDPS Act,
which  he  failed  to discharge.   The investigation  was not
vitiated because PW­1 may have been the informant himself.
Reliance was placed on State of Punjab vs. Baldev Singh,
(1999) 6 SCC 172, Bhaskar Ramappa Madar & Ors. vs.
State   of   Karnataka,   (2009)11   SCC   690,  Surender   vs.
State of Haryana, (2016) 4 SCC 617.
5. We have considered the submissions on behalf of the
parties.  The primary question for our consideration in the
present appeal is, whether in a criminal prosecution, it will
4
be in consonance with the principles of justice, fair play and
a fair investigation, if the informant and the investigating
officer were to be the same person.   In such a case, is it
necessary   for   the   accused   to   demonstrate   prejudice,
especially under laws such as NDPS Act, carrying a reverse
burden of proof.
6. Darshan Singh was an illiterate person.  He is stated to
have been accompanying PW­1 in a police vehicle while on
official duty along with ASI Balwinder Singh.   This to our
mind, is certainly not in the normal course of events.  The
consent memo Exhibit­PB was stated to have been signed by
Darshan Singh, despite his being an illiterate, along with
PW­1.  The seal sample was prepared by PW­1, and signed
by Darshan Singh and ASI Balwinder Singh.  The seal was
then handed over to ASI Balwinder Singh.  The case property
was   retained   by   PW­1   in   his   possession   and   was   not
deposited in the malkhana nor entered in the roznamcha.
There is no explanation for the same.     The sample was
retained   by   PW­1   in   his   private   custody   in   a   rented
accommodation.   No explanation is forthcoming from the
5
prosecution why Darshan Singh, and ASI Balwinder Singh
were not examined despite service of summons on the official
witness   and   issuance   of   bailable   warrants   against   the
private witness.  In their absence, neither the consent memo
nor the seal can be stated to have been proved.  There was
nine days’ delay in sending the sample for chemical analysis.
No explanation has been furnished in respect of the same.
PW­4 acknowledged that the recovery memo, Exhibit­PC was
not signed by the accused and that copies of documents
were not supplied to the accused nor any memo in this
regard prepared in his presence.   Exhibit­PB, the consent
memo only mentioned that he was the ASP, Phul.
7.  The presence of a private person in a police vehicle while
on patrol duty, the individual being an illiterate, but having
signed   the   consent   memo   were   surely   matters   for
investigation. Similarly, why the signature of ASI Balwinder
Singh or PW­4 was not obtained on the consent memo was
again a subject matter of investigation.   The veracity of the
sample seal handed over to ASI Balwinder Singh was likewise
a matter for investigation as to whether it was the same as
6
the seal on the case property retained in his private custody
by PW­1 and that sent for chemical analysis.  The mere fact
that   there   may   have   been   a   seal   cannot   lead   to   any
presumption in absence of the examination of ASI Balwinder
Singh.   Likewise, it was also a subject of investigation why
PW­1   did   not   make   any   roznamcha   entry   of   the   seized
property and the reason why he retained the case property
and sample in his private custody in a rented house despite
the availability of a malkhana.   The delay in sending the
sample for chemical analysis, in the facts and circumstances
of the case was again a matter for investigation.     Had the
investigator been different from the complainant, the issues
for   consideration   may   have   been   entirely   different.     The
appellant   in   his   defence   under   Section   313   Cr.P.C.   had
specifically   taken   a   plea   of   false   implication   by   PW­1   on
account of a dispute with regard to purchase of a tractor.
 
8.  The view taken by the High Court that under Section
55 of the NDPS Act, that PW­1 was empowered to keep the
case property and sample in his individual safe custody is
7
completely erroneous on the face of it.  The provision reads
as follows:
“55. Police to take charge of articles seized and
deliveredAn
officer­in­charge of a police station shall take
charge of and keep in safe custody, pending the
orders of the Magistrate, all articles seized under
this Act within the local area of that police station
and which may be delivered to him, and shall
allow   any   officer   who   may   accompany   such
articles   to   the   police   station  or   who   may   be
deputed for the purpose, to affix his seal to such
articles or to take samples of and from them and
all samples so taken shall also be sealed with a
seal   of   the   officer­in­charge   of   the   police
station.”(emphasis added)
A plain reading of the provision makes it manifest that
it   is   the   duty   of   the   police   officer   to   deposit   the   seized
material in the police station malkhana.
9. Standing Order No. 1 of 88 issued by the Narcotics
Control Bureau in clause 1.13 reads as follows:
“Mode and time limit for dispatch of sample to
Laboratory.
The  samples  should be sent either by insured
post   or   through   special   messenger   duly
authorised for the purpose. Dispatch of samples
8
by registered post or ordinary mail should not
be resorted to.  Samples must be dispatched to
the   Laboratory   within   72   hours   of   seizure  to
avoid any legal objection.”(emphasis added)
The Drug Law Enforcement­Field Officer’s Hand Book
issued by the Narcotics Control Bureau also provides that:
“28.  Were   the   seized   goods   and   samples
deposited   in   the   Malkhana   at   the   earliest
opportunity after seizure, an acknowledgement
receipt obtained from the Malkhana­in­Charge?
(emphasis added)
29. Were the samples sent to the designated
laboratory   for   analysis   and   report   within   72
hours of seizure?”
In Noor Aga vs. State of Punjab, (2008) 16 SCC 417,
under the NDPS Act, it was held :
“91.   The   logical   corollary   of   these
discussions is that the guidelines such as
those present in the Standing Order cannot
be   blatantly   flouted   and   substantial
compliance   therewith   must   be   insisted
upon   for   so   that   sanctity   of   physical
evidence   in   such   cases   remains   intact.
Clearly,   there   has   been   no   substantial
compliance   with   these   guidelines   by   the
investigating   authority   which   leads   to
drawing   of   an   adverse   inference   against
them to the effect that had such evidence
been produced, the same would have gone
against the prosecution.”
9
10. Unlike the general principle of criminal jurisprudence
that an accused is presumed innocent unless proved guilty,
the   NDPS   Act   carries   a   reverse   burden   of   proof   under
Sections 35 and 54.  But that cannot be understood to mean
that the moment an allegation is made and the F.I.R. recites
compliance with statutory procedures leading to recovery,
the   burden   of   proof   from   the   very   inception   of   the
prosecution shifts to the accused, without the prosecution
having   to   establish   or   prove   anything   more.     The
presumption is rebuttable.   Section 35 (2) provides that a
fact can be said to have been proved if it is established
beyond   reasonable   doubt   and   not   on   preponderance   of
probability. The stringent provisions of the NDPS Act, such
as Section 37, the minimum sentence of ten years, absence
of any provision for remission, do not dispense with the
requirement of the prosecution to establish a prima facie
case beyond reasonable doubt after investigation, only after
which the burden of proof shall shift to the accused.   The
10
case   of   the   prosecution   cannot   be   allowed   to   rest   on   a
preponderance of probabilities. 
11. A fair trial to an accused, a constitutional guarantee
under   Article   21   of   the   Constitution,   would   be   a   hollow
promise if the investigation in a NDPS case were not to be
fair or raises serious questions about its fairness apparent
on the face of the investigation.  In the nature of the reverse
burden  of  proof,  the  onus  will  lie  on  the   prosecution  to
demonstrate on the face of it that the investigation was fair,
judicious   with   no   circumstances   that   may   raise   doubts
about   its   veracity.       The   obligation   of   proof   beyond
reasonable   doubt   will   take   within   its   ambit   a   fair
investigation, in absence of which there can be no fair trial.
If the investigation itself is unfair, to require the accused to
demonstrate prejudice will be fraught with danger vesting
arbitrary powers in the police which may well lead to false
implication also.   Investigation in such a case would then
become   an   empty   formality   and   a   farce.     Such   an
interpretation therefore naturally has to be avoided.
11
12.   That investigation in a criminal offence must be free
from   objectionable   features   or   infirmities   which   may
legitimately lead to a grievance on part of the accused was
noticed in Babubhai vs. State of Gujarat, (2010) 12 SCC
254 as follows:
“32.  The   investigation   into   a   criminal   offence
must   be   free   from   objectionable   features   or
infirmities   which   may   legitimately   lead   to   a
grievance   on   the   part   of   the   accused   that
investigation was unfair and carried out with an
ulterior   motive.   It   is   also   the   duty   of   the
investigating  officer to conduct the investigation
avoiding any kind of mischief and harassment to
any   of   the   accused.   The   investigating   officer
should be fair and conscious so as to rule out
any possibility of fabrication of evidence and his
impartial conduct must dispel any suspicion as
to its genuineness. The investigating officer “is
not merely to bolster up a prosecution case with
such evidence as may enable the court to record
a   conviction   but   to   bring   out   the   real
unvarnished truth”.
33.  In  State of Bihar  v.  P.P. Sharma  this Court
has held as under:
“57.   …   Investigation   is   a   delicate
painstaking and dextrous process. Ethical
conduct   is   absolutely   essential   for
investigative  professionalism. … Therefore,
before   countenancing   such   allegations   of
mala   fides   or   bias   it   is   salutary   and   an
onerous   duty   and   responsibility   of   the
court,   not   only   to   insist   upon   making
specific and definite allegations of personal
12
animosity against the investigating officer at
the start of the investigation but also must
insist to establish and prove them from the
facts and circumstances to the satisfaction
of the court.
* * *
59.   Malice  in   law   could   be  inferred   from
doing of wrongful act intentionally  without
any just cause or excuse or without there
being reasonable relation to the purpose of
the exercise of statutory power. …
61.   An  investigating  officer   who   is   not
sensitive   to   the   constitutional   mandates,
may be prone to trample upon the personal
liberty of a person when he is actuated by
mala fides.”
13.        The duty of the prosecution under the NDPS Act,
considering the reverse burden of proof, was noticed in Noor
Aga (supra) observing: ­
“58……An   initial   burden   exists   upon   the
prosecution   and   only   when   it   stands
satisfied, would the legal burden shift. Even
then, the standard of proof required for the
accused to prove his innocence is not as
high as that of the prosecution. Whereas
the standard of proof required to prove the
guilt of the accused on the prosecution is
“beyond   all   reasonable   doubt”   but   it   is
“preponderance   of   probability”   on   the
accused. If the prosecution fails to prove the
foundational   facts   so   as   to   attract   the
rigours of Section 35 of the Act, the actus
reus which is possession of contraband by
13
the accused  cannot  be said to have been
established.
59. With a view to bring within its purview
the requirements of Section 54 of the Act,
element of possession of the contraband was
essential so as to shift the burden on the
accused. The provisions being exceptions to
the   general   rule,   the   generality   thereof
would continue to be operative, namely, the
element of possession will have to be proved
beyond reasonable doubt.”
Furthermore, the sample not having been deposited in
the malkhana, coupled with non­examination of the private
witnesses, an adverse inference was drawn therein against
the prosecution.  This principle has been reiterated in Bhola
Singh vs. State of Punjab, 2011(11) SCC 653. 
14. In a criminal prosecution, there is an obligation cast on
the investigator not only to be fair, judicious and just during
investigation, but also that the investigation on the very face
of   it   must   appear   to   be   so,   eschewing   any   conduct   or
impression   which   may   give   rise   to   a   real   and   genuine
apprehension   in   the   mind   of   an   accused   and   not   mere
fanciful,   that   the   investigation   was   not   fair.     In   the
14
circumstances, if an informant police official in a criminal
prosecution, especially when carrying a reverse burden of
proof, makes the allegations, is himself asked to investigate,
serious doubts will naturally arise with regard to his fairness
and impartiality.  It is not necessary that bias must actually
be proved.  It would be illogical to presume and contrary to
normal human conduct, that he would himself at the end of
the investigation submit a closure report to conclude false
implication   with   all   its   attendant   consequences   for   the
complainant himself.  The result of the investigation would
therefore be a foregone conclusion.
15. The   discussion   in   the   present   case   may   not   be
understood   as   confined   to   the   requirements   of   a   fair
investigation under the NDPS Act only carrying a reverse
burden   of   proof.    Baldev   Singh  (supra)   related   to   a
prosecution under Section 165A of the IPC.  Nonetheless, it
observed   that   if   the   informant   were   to   be   made   the
investigating officer, it was bound to reflect on the credibility
of the prosecution case.   Megha Singh (supra) concerned a
15
prosecution   under   the  Terrorist   and   Disruptive   Activities
(Prevention) Act, 1985.  It was held that the Head Constable
being   the   complainant   himself   could   not   have   proceeded
with the investigation and it was a practice, to say the least,
which should not be resorted to so that there may not be
any   occasion   to   suspect   fair   and   impartial   investigation.
Rajangam (supra) was a prosecution under the NDPS Act,
an  objection  was taken  that PW­6 who  apprehended the
accused could not have investigated the case.  Upholding the
objection, relying on Megha Singh  (supra) the accused was
acquitted.   The   view   taken   by   the   Madras   High   Court   in
Balasundaran vs. State, 1999 (113) ELT 785 (Mad.), was
also noticed as follows :
“16.   Learned   Counsel   for   the   appellants
also stated that P.W. 5 being the Inspector
of Police who was present at the time of
search and he was the investigating officer
and as such it is fatal to the case of the
prosecution.   P.W.   5,   according   to   the
prosecution, was present with PWs 3 and
4 at the time of search. In fact, P.W. 5
alone took up investigation in the case and
he had examined the witnesses. No doubt
the successor to P.W. 5 alone had filed the
charge sheet. But there is no material to
show   that   he   had   examined   any   other
witness.   It   therefore   follows   that   P.W.   5
16
was the person who really investigated the
case.   P.W.   5   was   the   person   who   had
searched the appellants in question and he
being the investigation officer, certainly it
is not proper and correct. The investigation
ought   to   have   been   done   by   any   other
investigating agency. On this score also,
the investigation is bound to suffer and as
such   the   entire   proceedings   will   be
vitiated.”
16. Bhaskar   Ramappa   Madar  (supra)   concerned   a
prosecution under Section 304B, I.P.C. which also carries a
reverse   burden   of   proof.   The   Trial   Court   held   that   the
investigating officer who was also the complainant could not
have investigated, and on that ground, held the prosecution
to be tainted.  The acquittal was reversed by the High Court.
In   appeal,   this   Court   declined   to   interfere   with   the
conviction.  After referring to  Bhagwan Singh  (supra) and
Megha  Singh  (supra), it was observed that the principles
laid down therein had to be confined to the facts of the said
cases and that the matter would have to be decided on the
facts of each case without any universal generalisation.
17
17. Hardip Singh vs. State of Punjab, 2008 (8) SCC 557
concerned   a   prosecution   under   the   NDPS   Act.     The
contention   was   that   the   Inspector,   PW­5   being   the
complainant   himself   would   be   an   interested   person   and
should not have been made the investigating officer.   The
argument was repelled relying on State rep. by Inspector
of Police, Vigilance and Anti­Corruption, Tiruchirapalli,
Tamil Nadu vs. V. Jayapaul,  2004 (5) SCC 223 observing
as follows:
“6…. We find no principle or binding authority to
hold   that   the   moment   the   competent   police
officer,   on   the   basis   of   information   received,
makes out an FIR incorporating his name as the
informant, he forfeits his right to investigate. If at
all, such investigation could only be assailed on
the ground of bias or real likelihood of bias on
the part of the investigating officer. The question
of   bias   would   depend   on   the   facts   and
circumstances of each case and it is not proper
to lay down a broad and unqualified proposition,
in the manner in which it has been done by the
High   Court,   that   whenever   a   police   officer
proceeds to investigate after registering the FIR
on his own, the investigation would necessarily
be unfair or biased.”
18
Significantly,  V.   Jayapaul,   (supra)   related   to   a
prosecution under the Prevention of Corruption Act which
sought to distinguish Megha Singh, (supra) on its facts.
18. Baldev   Singh,   (supra)   relied   upon   by   the   State   is
distinguishable on its own facts concerning an irregularity in
an   investigation   by   an   officer   not   especially   empowered
under the NDPS Act to do so.
19. In  Surender  (supra), the prosecution was under the
NDPS Act. There was no independent witness.  The objection
that   PW­6,   Sub­inspector   Satbir   Singh   being   the
complainant   could   not   have   investigated   relying   on
Rajangam, (supra) and Megha Singh, (supra) was rejected
on the ground that he was not the sole person investigating
the case, and that the ground had not been raised before the
High Court in appeal.
19
20. In the nature of the controversy, it would be useful to
also notice the view taken by different High Courts on the
issue.   In  State  of  Himachal  Pradesh  vs.  Atul  Sharma
2015 (2) shimLC 693 (Crl. Appeal No. 246 of 2008, decided
on 28.02.2015), under the NDPS Act, it was observed as
follows:
“10.8  In present case it is proved on record that
complainant   is   SI   Bahadur   Singh   as   per   FIR
Ext.PW12/A   and   it   is   proved   on   record   that
entire   investigation   has   been   conducted   by
complainant himself and there is no evidence on
record in order to prove that investigation was
handed   over   to   some   other   independent
Investigating   Officer.   It   is   not   the   case   of
prosecution   that   no   other   independent
Investigating   Officer   was   available   to   conduct
impartial   investigation.   We   are   of   the   opinion
that   conducting   entire   investigation   i.e.
preparation of seizure memo, site plan, recording
statements of witnesses by complainant himself
has caused miscarriage of justice to accused qua
fair investigation.”
21. A similar view has been taken in  Shri Fayas  Ali vs.
State   of   Mizoram  Crl. Appeal No. 26 of 2013 (J) dated
19.09.2013, relating to prosecution under the NDPS Act, by
the Gauhati High Court as follows:
20
“From the evidence of PWs 1 and 4, it is clearly
found that the major part  of  the investigation
including the arrest of the accused, preparation
of seizure, taking of sample, examination of the
seizure   witnesses   and   examination   of   the
accused person, was completed by the PW1, who
was the informant/complainant  in  the present
case.   Therefore,   it   is   clearly   found   that   the
investigation, in its true sense, was done by the
complainant   himself.   In   the   case   of   State   by
Inspector of Police, Narcotic Intelligence Bureau,
Madurai(supra), the Supreme Court, relying on
the decision held in the  case of Megha  Singh
(supra), observed that the investigation is to be
done by a person other than the complainant
and   that   the   investigation   done   by   the
complainant is bound to suffer and vitiate the
entire proceeding.”
22. The Punjab & Haryana High Court in Gannu and Ors.
vs.   State   of   Punjab,  2017   (3)   RCR   (criminal) 566   (Crl.
Appeal No. 1688­SB of 2004 dated 26.05.2017) relating to
the NDPS Act, after referring to Noor Aga,  (supra) and the
views   of   the   Calcutta   High   Court   also   apart   from  Atul
Sharma (supra), concluded as follows:
“14. Another aspect of the matter is that in sheer
violation of the principles of fair and impartial
investigation,   the   complainant   and   the
investigating officer is the same person, which
makes the prosecution case doubtful. In Laltu
Prasad v. State of West Bengal, 2017(2) R.C.R.
21
(Criminal) 237 (Calcutta) (DB), it was held that
the   complainant   himself   acting   as   the
investigating officer violating the principles of fair
and impartial investigation is a practice, to say
the least, should not be resorted to and it is a
disturbing   feature.   To   the   same   effect,   is   a
Division   Bench   judgment   of   Hon'ble   Himachal
Pradesh   High   Court   reported   as   State   of
Himachal Pradesh v. Atul Sharma and others,
2015 (6) R.C.R. (Criminal) 949, wherein, it has
been held that where the complainant himself
conducts investigation, it causes miscarriage of
justice to accused qua fair investigation.”
23. A Single Judge of the Kerala High Court in  Naushad
vs. State of Kerala, 2000 (1) KLT 785, relating to the NDPS
Act held as follows:
“…In   a   case   of   this   nature,   when   the
complainants himself is a Police Official, the
investigation should have been conducted
by   his   top   ranking   officer   and   the   final
report also ought to have been filed by the
higher official. A complainant being a police
officer   cannot   be   an   Investigating   Officer.
For,   in   such   case,   the   accused   and   the
prosecution   will   be   deprived   of   their
valuable   rights   of   contradicting   and
corroborating,   the   previous   information
recorded under Ss. 154 or 155 Cr.P.C. and
previous statement of the witness, being a
police officer, complaint recorded, under S.
161 Cr.P.C. enjoined in S. 145 and 157 of
the Indian Evidence Act and proviso of S.
162 Cr.P.C. In the instant case, before me,
PW1 is an Assistant Sub Inspector of Police,
22
and   I   understand   from   the   Public
Prosecutor as well as from the Counsel for
the   petitioner   that   the   particular   Police
Station has got a Sub Inspector of Police.
Therefore,   in   this   case,   the   investigation
ought to have been conducted by the Sub
Inspector   of   Police   or   any   other   Police
Officer   above   the   rank   of   PW1.   In   the
instant   case,   thus   an   incurable   infirmity
and   flaw   have   been   committed   by   the
prosecution, quite against the proposition of
law.   Therefore,   on   that   score   itself,   the
petitioner   is   entitled   to   get   an   order   of
acquittal. In view of my above conclusion on
the footing of position of law, this is a fit
case, which has to be allowed by acquitting
the petitioner."
Disapproving of the same, a Division Bench in Kader vs.
State of Kerala, 2001 CriLJ 4044, held:
“6. Unlike usual cases  under the Criminal
Procedure Code, in cases under the NDPS
Act,   by   the   time   of   arrest,   main   part   of
investigation will be completed and duty of
the investigating officer is mainly in sending
the samples for chemical analysis and other
routine work and there is no likelihood of
any   prejudice   in   usual   circumstances.
Therefore, we are of the opinion that merely
because   a   detecting   officer   himself   is
investigating   officer   or   the   officer   of   the
same ranks as that of the detecting officer is
investigating the case and files report before
the Court will not vitiate the proceedings
under N.D.P.S. act in the absence of proof
of   specific   prejudice   to   the   accused.
Therefore, legal position stated in Naushad
23
v. State of Kerala 2000 (1) KLT 785 to the
contrary is overruled.”
24. The view taken by the Kerala High Court in  Kader
(supra)   does   to   meet   our   approval.     It   tantamounts   to
holding   that   the   F.I.R.   was   a   gospel   truth,   making
investigation an empty formality if not a farce. The right of
the accused to a fair investigation and fair trial guaranteed
under Article 21 of the Constitution will stand negated in
that event, with arbitrary and uncanalised powers vested?
with the police in matters relating to the NDPS Act and
similar   laws   carrying   a   reverse   burden   of   proof.     An
investigation is a systemic collection of facts for the purpose
of describing what occurred and explaining why it occurred.
The word systemic suggests that it is more than a whimsical
process. An investigator will collect the facts relating to the
incident under investigation.  The fact is a mere information
and is not synonymous with the truth.    Kader (supra) is,
therefore,   overruled.     We   approve   the   view   taken   in
Naushad (supra). 
24
25.    In   view   of   the   conflicting   opinions   expressed   by
different two Judge Benches of this Court, the importance of
a fair investigation from the point of view of an accused as a
guaranteed   constitutional   right   under   Article   21   of   the
Constitution of India, it is considered necessary that the law
in this regard be laid down with certainty.   To leave the
matter for being determined on the individual facts of a case,
may not only lead to a possible abuse of powers, but more
importantly will leave the police, the accused, the lawyer and
the courts in a state of uncertainty and confusion which has
to be avoided.  It is therefore held that a fair investigation,
which is but the very foundation of fair trial, necessarily
postulates that the informant and the investigator must not
be the same person.   Justice must not only be done, but
must appear to be done also.   Any possibility of bias or a
predetermined   conclusion   has   to   be   excluded.     This
requirement is all the more imperative in laws carrying a
reverse burden of proof.
25
26. Resultantly, the appeal succeeds and is allowed.  The
prosecution is held to be vitiated because of the infraction of
the   constitutional   guarantee   of   a   fair   investigation.   The
appellant is directed to be set at liberty forthwith unless
wanted in any other case.
…………...................J.
[RANJAN GOGOI]
…………...................J.
[R. BANUMATHI]
…………...................J.
[NAVIN SINHA]
NEW DELHI
AUGUST 16, 2018
26

artificial break of one day,= The petitioner was undoubtedly in continuous service. Indeed, what is termed as a break was at the highest an artificial break. From the correspondence referred to above, it appears to us clear that there in fact was not even an artificial break, for the re-appointments were from the very next date. However, even assuming that the same in the Petitioner’s case amounted to an artificial break, the Petitioner is adequately safeguarded by the circulars/resolutions issued by the Government of Maharashtra. For instance, by a G.R. dated 7.6.1980 the Government recorded the fact that it had considered the representations made to it regarding such breaks; that it was observed that in most of the cases services of the teachers in junior colleges were terminated at the end of every academic year and they were appointed for the next academic year without benefit of continuous service and that it had further been represented to Government that such teachers should get the status of confirmed teachers if they had put in, in all, 24 months service even though it was not continuous due to the breaks given by the managements of the Non-Government Junior Colleges. It was observed that such practice had resulted in a sense of insecurity amongst the employees and deprived them of benefits of continuous service. It was therefore directed that a total of 24 months service in the same institution over-looking the break in service, should qualify junior college teachers to be treated as substantive subject to certain conditions. The petitioner admittedly complied with all such conditions. Thereafter, by a further resolution dated 26.2.1981 this resolution was extended mutatis mutandis. The same was so far as it related to the counting of break periods towards completion of probation period of 24 months in respect of teachers of Non-Government Junior Colleges to the teachers of NonGovernment Senior Colleges in the State as well.”= deprecating such artificial breaks to deny the benefit to an employee, more so a teacher. We cannot lose sight of the fact that security of tenure for a teacher, who dedicates 13 her life for education of the students, is of utmost importance. Insecurity should not be created in the employment of such lecturers or teachers, more so when they are through a process of really a subterfuge of giving artificial breaks. Another plus point is that this artificial break is also the result of a change in the educational curriculum. It is really a matter of internal adjustment arising from the change in curriculum and the appellant has been in continuous service for two decades, but for this one day break. This is how it has been really understood by the college and by the State Government, as they have given pension to her which is admissible after 20 years of service. 22. We are also of the view that this issue has been receiving attention and has been agitated before different authorities and the alleged delay in filing the writ petition cannot stand in the way of the appellant getting the benefit for services. The relevant pay-scale will entitle her to the emoluments which were admissible to her for work already performed. 23. We, thus, unhesitatingly conclude that the appellant is entitled to be treated in the pay-scale of Rs.700-1600 and is entitled to all the benefits of the Resolution dated 27.11.1991. 24. We, thus, direct the respondents to calculate the emoluments due to 14 the appellant in the aforesaid terms within a period of three months from today and remit the same to her within the same period of time. In the peculiar facts, we are not granting any past interest in this case, but in case of any delay beyond three months, interest would be admissible on the amounts due and payable to the appellant @ 12 per cent per annum, simple interest.

Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.__8292_ of 2018
[Arising out of SLP(C) No.25448/2017]
AHALYA A. SAMTANEY ….APPELLANT
Versus
THE STATE OF MAHARASHTRA & ORS. ….RESPONDENTS
J U D G M E N T
SANJAY KISHAN KAUL, J.
1. Leave granted.
2. The appellant obtained a Post Graduate degree (M.A.) and
thereafter completed her Bachelor of Education (B.Ed.). She was
appointed as a tutor of English in the H.R. College of Commerce and
Economics, Mumbai (respondent No.6), in which position she carried on
her professional duties from 15.12.1974 to 31.7.75 in the grade pay-scale
of Rs.250-15-400. The then existing pattern of education was of 10 years
schooling and 4 years of college. The appointment of the appellant was
approved by the University of Mumbai (respondent No.4) on 15.5.1975.
1
3. The appellant continued to work as a tutor in English till
31.7.1975, when she was promoted as a Lecturer of English in the Senior
College w.e.f. 1.8.1975. The appellant continued to work in that capacity
up to 30.9.1976 in the revised grade pay-scale of Rs.700-50-1600.
4. A new pattern of education was introduced from June, 1976 under
the pattern of 10+2+3, as a consequence of which the appellant was
rendered fully surplus in the senior college. The Government of
Maharashtra (respondent No.1) conscious of such consequences, laid
down certain guidelines for absorption of the lecturers rendered surplus
due to the new 10+2+3 pattern vide the Government Resolution No.
HSC.1076/419-XX-XXI dated 11th June 1976. It is in view of these
guidelines that the appellant was appointed as a full time teacher in
English now in the junior college w.e.f. 1.10.1976, in the pay-scale of
Rs.500-900 instead of Rs.700-50-1600.
5. It is on 3.6.1977 that the appellant took up the issue of her reappointment
as a full time lecturer in college in view of the fact that she
had been working for two years with respondent No.6 College and in
response thereto on 14.6.1977, the Principal of the College informed the
2
appellant that the college was appointing her as a full time lecturer of
English in the junior college and that her salary would remain the same.
6. The Government of Maharashtra by Resolution dated 25.10.1977
sought to revise the pay-scales of University and School teachers
retrospectively from 1.1.1973. The consequence of this for the appellant
was that her salary was revised to Rs.700-50-1600 from 1.8.1975, i.e.,
the date of her promotion as a lecturer in the senior college.
7. The other developments which took place were that by the order
dated 19.6.1978, the Principal of the College appointed her as a full time
Lecturer in the Junior College and thereafter allowing her to contribute to
the Provident Fund. The College informed the Joint Director of Higher
Education that they were desirous of absorbing the appellant in the
Degree College w.e.f. 1.1.1994 and to fix her pay in the scale of Rs.2200-
4000 from 1.12.1993. This absorption was approved by the University
by the order dated 31.1.1994. There were certain other communications
also exchanged in the same direction.
8. The appellant sought regularisation of her pay-scale, a grievance,
which was not redressed, which resulted in her filing writ petition
No.1840/1998, before the Bombay High Court. The gravamen of the
3
case of the appellant in the High Court was that the appellant was
squarely covered by a Government Resolution dated 11.6.1976, which
dealt with cases like those of the appellant being rendered surplus. Since
the appellant was appointed as a full time teacher of English in Junior
College w.e.f. 1.10.1976, the appellant claimed protection of her pay.
9. It is the case of the appellant that the appendix to the Government
Resolution of 11.6.1976 contains the guidelines for absorption of
teachers determined as surplus at college levels. The appendix has a
number of clauses, but what is germane for the present controversy is
clause No.(iii) on which reliance is placed by the appellant and reads as
under:
“(iii) College teachers who were in service on or before 7th February,
1975 and were also in continuous service upto the end of the academic
year 1975-76 in a college or colleges under the same management but
had not completed two years of continuous service upto the end of
academic year 1975-76;”
10. The case of the appellant is based on her being in service on or
before 7.2.1975, as she was working with the college as a tutor from
15.12.1974 and that she continued her service up to the academic year
1975-76 in the college, but could not complete two years of continuous
service by then, on account of the new pattern of education. There was a
4
simultaneous declaration of the appellant as surplus on 29.9.1976, with
her appointment as a full time teacher in the Junior College w.e.f.
1.10.1976. In terms of the Government resolutions, the appellant
claimed pay-scale of Rs.700-1600. She claimed placement in this payscale
from 1.8.1975 in view of the pay-scale existing for Senior Lecturer
and Lecturer (junior scale), which were revised. She, thus, also claimed
entitlement to all consequential arrears on account of re-fixation of pay.
The defence of the respondents is based on the alleged non-continuous
service on account of her termination on 30.9.1976 with her reappointment
in the junior college w.e.f. 1.10.1976. Thus, it was claimed
that the appellant is not covered by clause (iii) having worked as a tutor
till 31.7.1975 and being appointed as a Lecturer in the senior college only
w.e.f. 1.8.1975.
11. The reasoning advanced on behalf of the respondents found favour
with the High Court, which dismissed the writ petition by the order dated
24.7.2017. What weighed with the High Court was the fact that the
initial appointment of the appellant was as a tutor of English in the senior
college and the appointment was approved by the University as such.
Thus, she was working as a tutor on or before 7.2.1975 and the case of
5
college ‘tutors’ was to be considered in accordance with clauses (iv) &
(v) of the Guidelines, which read as under:
“(iv) College tutors/Demonstrators and persons in equivalent grade
(Rs.250-400) F.T. who were either confirmed in clear vacancies or who
had been completed two years of service in clear vacancies in a college
or colleges under the same management on or before 7th February 1975
and who fulfil the qualifications prescribed by the University concerned
for appointment as lecturers and are, therefore, entitled to deemed date
of 1st July 1975;
(v) College tutors/demonstrators and persons in equivalent grade
(Rs.250-400) who were either confirmed in clear vacancies or who had
completed two years of service in clear vacancies in a college or colleges
under the same management on or before 7th February, 1975 but who do
not fulfil the qualifications prescribed by the University concerned for
appointment as lecturers.”
12. The conclusion reached was that clause (iii) of the Guidelines and
the consequent revision of scales prescribed are applicable to those alone
who are working as senior lecturers/lecturers covered by the said clause,
while the appellant was not working in that capacity on that cut-off date,
but became a lecturer only from a subsequent date. The appellant, before
the cut off date of 7.2.1975, was only working as a tutor in the senior
college.
13. We may note that delay and laches has also been found to be an
additional obstruction in the way of the appellant as the pay-scale was
fixed in the year 1976 while the petition was filed in the year 1998.
6
14. Learned counsel for the respondent endeavoured to support the
impugned judgment by emphasising that clause No.(iii) would have no
application in the facts of the present case as the services of the appellant
were terminated on 30.9.1976 with her re-appointment in the junior
college w.e.f. 1.10.1976. On the other hand, learned counsel for the
appellant sought to claim relief on a divergent reasoning based on a
Government Resolution dated 27.11.1991, which though finds a mention
in the writ petition, appears not to have been the fulcrum of the
endeavour to get relief for the appellant, before the High Court. Reliance
upon this Government Resolution of 1991 is also apparent from the
written synopsis filed on behalf of the appellant.
15. It was sought to be contended before us, by learned counsel for the
appellant that the relevant resolution, which could assist the appellant in
getting relief is in fact this Government Resolution dated 27.11.1991.
This is so as the appellant was working under the old pattern of 10+4 in
the senior college, but for no fault of hers, on account of change in the
education pattern to 10+2+3, she was rendered “fully surplus” in the
degree college in June, 1976. As a consequence of the same, the services
7
of the appellant were terminated from the senior college by the letter
dated 29.9.1976, but came along with an almost simultaneous/immediate
transfer in the junior college with effect from 1.10.1976. It is also
relevant to note that the appointment letter records that the salary of the
appellant shall remain the same. However, when the appellant joined the
junior college from 1.10.1976 she was given the pay-scale of Rs.500-900
instead of Rs.700-1600. This was so, as under the Resolution dated
11.6.1976, extracted partly aforesaid, the appellant would not fit in any of
the categories of P-1 to P-5. The appellant, being a tutor on the cut-off
date of 7.2.1975, would not fall in categories P-1 to P-3, while though a
tutor was covered under categories P-4 and P-5, she did not meet the
requisite parameters thereof. It was for the benefit of such persons like
the appellant, who did not fit in any of the categories, that the same were
declared as “rest category” in the Government of Maharashtra Resolution
dated 27.11.1991, and were accordingly given the benefit of the payscale
of Rs.700-1600 from their initial appointment date in the senior
college. The resolution dated 27.11.1991 is reproduced hereunder:
“EXHIBIT – III
27.11.1991
 Government Resolution-The new education system
(Program) of 10+2+3 has started in the year 1975-76 in the
8
Maharashtra state. In order to absorb some surplus teachers in
service as per the guidelines of the Government these (teachers)
were divided into five categories and as per the guidelines they
were labelled on P-1, P-2, P-3, P-4 and P-5.
The teachers belonging to P-1 category were recognized
(teachers) and were in service before 7.2.1975. Therefore as per
the Government policy they were absorbed in pay scale of Rs.700-
1200. The teacher in P-1 category included tutor demonstrator,
Method Masters and they were in service on 7.2.1975. However as
per the rules of University they were not having teacher’s
qualification.
Subsequent to the implementation of the new educational
pattern, some teachers joined the senior college after 7.2.1975.
Since these teachers were not included in the above referred
categories they were considered in remaining or Rest Category
teachers.
As the new educational pattern was implemented from the year
1975-76, these rest Category teachers who had become surplus
were absorbed in Junior college so that they would not the1
 (sic)
rendered jobless. Since these teachers were not from the above
referred five categories they were given a pay scale of Rs.500-900
in Junior college instead of pay scale of Rs.700-1600. A five
Member Committee appointed under the Chairmanship of
Department of Higher Education to study the question of
protecting the pay scale of Rest Category teachers in pay scale of
Rs.700-1600 who had been rendered surplus because of the
implementation of the new educational pattern, had recommended
the protection of scale for that Category teachers. The question of
giving such scale of Rs.700-1600 to Rest category teachers was
therefore under consideration of Government.
The Government therefore resolved that subject to the
conditions mentioned hereafter the teachers who have been
1
  To be read as ‘be’.
9
rendered surplus in Senior Colleges and have been absorbed in
Junior College, because of the new educational pattern, be given
the protection of pay scale of Rs.700-1600 from their earlier
appointed in Senior Colleges.
1. Their appointment should be in the clear vacancy in the scale
of Rs.700-1600.
2. They have been rendered surplus due to implementation of
10+2+3 pattern.
3. They having been rendered surplus in this manner, have been
immediately absorbed in the junior college of the same
management.
4. They (said teacher) have continued in the Senior College of
the management if vacancy, senior college in pay scale of
Rs.700-1600 has not been available for their absorption.
5. Their service has not been terminated by the management.
6. They just2
 (sic) not have tendered their resignations.
Date: 27.11.1991”
16. There is really no dispute that the appellant falls in the “rest
category”. This is inter alia acknowledged in the letter of the Principal
of the College dated 16.11.1993 noticing that but for the loss of workload
in the degree college she would have been working in the senior college
but had to be re-appointed in the junior college. Once again in the letter
dated 16.11.1993 addressed by the College to the University it is
2 To be read as ‘must’.
10
categorically stated that the appellant falls in the “rest category”. The
only ground on which the Government refuses to consider her in the “rest
category”, is the absence of continuous employment and for no other
reason. Her termination and re-appointment is being used against her.
Para 5 of the counter affidavit before us is quite clear on this aspect. The
one day gap arising from the letter dated 29.9.1976 informing the
appellant that she would be joining on 1.10.1976 in the junior college as
she was declared surplus in the senior college from 29.9.1976 is, thus,
sought to be put against her. The letter dated 16.11.1993 may usefully be
referred to for this purpose, which reads as under:
“I have to state that Mrs. A.A. Samtaney REST category teachers the
Degree College was transferred to the Junior College for want of workload
as per the above orders she is to be absorbed as Lecturer in the
Degree College, in the Vacancy be filled in now, the particulars are as
below:
(1) Mrs. A.A. Samtaney was working as Tutor in English from
16.12.1974 to 14.3.1975, she was again appointed as Tutor in
English from 15.7.1975, but was promoted as Lecturer in English
from 1.8.1975. She would have continued as Lecturer in English
during the academic year 1975-76, but for the loss work-load in the
Degree College, she was transferred to the Junior College, with
effect from 1.10.1976. She is working in the Junior College till
today.”
17. The aforesaid, thus, buttresses the claim of the appellant that she
had been in continuous service, but for this artificial break of one day,
11
arising from the change in curriculum. This position continued till
31.12.1993 when she was transferred to the senior college in view of the
vacancy arising from the retirement of one Mrs. K.I. Sippy on
31.12.1993. The appellant continued to work in that capacity till
September, 2011 when she retired from service, receiving pension.
18. It is also relevant to note that pension is granted only if there is 20
years of continuous service, thus, the grant of pension itself also supports
the continuation of service of the appellant.
19. We have to really, thus, only examine as to what is the effect of
this artificial break of one day, which was given to the appellant, as
otherwise the appellant is fully covered and is entitled to the benefit
under the Resolution dated 27.11.1991.
20. We really do not have to labour much on this aspect as the High
Court of Bombay itself had an occasion to examine the same in Writ
Petition No.2903/1989 titled Professor Pervez H. Lentin v. The
Principal St. Xavier’s College & Ors. decided on 17.2.2005. In a sense
this is also an identical case of an artificial break arising from the change
in the education pattern. We may usefully extract para 16 of the said
judgment as under:
12
“16. The petitioner was undoubtedly in continuous service. Indeed,
what is termed as a break was at the highest an artificial break. From the
correspondence referred to above, it appears to us clear that there in fact
was not even an artificial break, for the re-appointments were from the
very next date. However, even assuming that the same in the
Petitioner’s case amounted to an artificial break, the Petitioner is
adequately safeguarded by the circulars/resolutions issued by the
Government of Maharashtra. For instance, by a G.R. dated 7.6.1980 the
Government recorded the fact that it had considered the representations
made to it regarding such breaks; that it was observed that in most of the
cases services of the teachers in junior colleges were terminated at the
end of every academic year and they were appointed for the next
academic year without benefit of continuous service and that it had
further been represented to Government that such teachers should get the
status of confirmed teachers if they had put in, in all, 24 months service
even though it was not continuous due to the breaks given by the
managements of the Non-Government Junior Colleges. It was observed
that such practice had resulted in a sense of insecurity amongst the
employees and deprived them of benefits of continuous service. It was
therefore directed that a total of 24 months service in the same institution
over-looking the break in service, should qualify junior college teachers
to be treated as substantive subject to certain conditions. The petitioner
admittedly complied with all such conditions. Thereafter, by a further
resolution dated 26.2.1981 this resolution was extended mutatis
mutandis. The same was so far as it related to the counting of break
periods towards completion of probation period of 24 months in respect
of teachers of Non-Government Junior Colleges to the teachers of NonGovernment
Senior Colleges in the State as well.”
21. We are in complete agreement with the approach adopted by the
High Court in the aforesaid judgment of deprecating such artificial
breaks to deny the benefit to an employee, more so a teacher. We cannot
lose sight of the fact that security of tenure for a teacher, who dedicates
13
her life for education of the students, is of utmost importance. Insecurity
should not be created in the employment of such lecturers or teachers,
more so when they are through a process of really a subterfuge of giving
artificial breaks. Another plus point is that this artificial break is also the
result of a change in the educational curriculum. It is really a matter of
internal adjustment arising from the change in curriculum and the
appellant has been in continuous service for two decades, but for this one
day break. This is how it has been really understood by the college and
by the State Government, as they have given pension to her which is
admissible after 20 years of service.
22. We are also of the view that this issue has been receiving attention
and has been agitated before different authorities and the alleged delay in
filing the writ petition cannot stand in the way of the appellant getting the
benefit for services. The relevant pay-scale will entitle her to the
emoluments which were admissible to her for work already performed.
23. We, thus, unhesitatingly conclude that the appellant is entitled to
be treated in the pay-scale of Rs.700-1600 and is entitled to all the
benefits of the Resolution dated 27.11.1991.
24. We, thus, direct the respondents to calculate the emoluments due to
14
the appellant in the aforesaid terms within a period of three months from
today and remit the same to her within the same period of time. In the
peculiar facts, we are not granting any past interest in this case, but in
case of any delay beyond three months, interest would be admissible on
the amounts due and payable to the appellant @ 12 per cent per annum,
simple interest.
25. The appeal is accordingly allowed leaving the parties to bear their
own costs.
..….….…………………….J.
[Kurian Joseph]

...……………………………J.
[Sanjay Kishan Kaul]
New Delhi.
August 16, 2018.
15

extra judicial confession is a weak piece of evidence, which cannot form basis for conviction and unless supported by other substantive evidence, which is lacking in this case.= A-2 clothes were blood stained and A-1 wearing sweater. Both A-1 and A-2 said to have made extra judicial confession to PW-4. But when PW-4 was examined in the court, PW-4 stated that 4 accused nos. 1 and 2 came to his residence on the night of 07.07.2003 and cloth of accused no. 2 was blood stained. PW-4 further stated that when he questioned accused No. 1, he stated that they were travelling in an auto towards Karthikere, it toppled and in that process they sustained injuries. The above said evidence of PW-4 explaining the blood stains on the cloth of accused no. 2 due to toppling of auto does not advance case of the prosecution that A-1 conspired with A-2 who committed the murder of deceased Mohan Kumar. In any event extra judicial confession is a weak piece of evidence, which cannot form basis for conviction and unless supported by other substantive evidence, which is lacking in this case. -The said photographs at the most may only show that A-1 and A-3 has illicit relationship. There is no evidence adduced to prove that A-3 had hatched conspiracy with A-2 to commit the murder of Mohan Kumar. Upon appreciation of the evidence adduced by the prosecution in particular PW-2 , PW-20 and PW-4, the High Court has held that the guilt of A-2 and A-3 has not been established beyond reasonable doubt. We do not find any ‘compelling reason’ or ‘substantial infirmity’ warranting interference with the order of acquittal of respondent nos. 1 and 2 (Accused Nos. 2 and 3).

1

REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 1428-1429 OF 2013
STATE OF KARNATAKA ...APPELLANT(S)
 VERSUS
P.RAVIKUMAR @ RAVI ETC. ...RESPONDENT(S)


J U D G M E N T
R. BANUMATHI,J.
1. Challenging the acquittal of respondent nos. 1
and 2 (accused 2 & 3) respectively for the offence
under Section 302, IPC the State of Karnataka has
preferred these appeals.
2. Case of the prosecution is that respondent no.
2 (A-3) D.B. Savitha - wife of the deceased - Mohan
Kumar was allegedly having illicit relationship with
accused no. 1. On account of such motive, Accused No.
1 and respondent nos. 1 and 2 herein (Accused Nos. 2 &
3) are alleged to have hatched a conspiracy in
committing the murder of deceased Mohan Kumarhusband
of A-3 (D.B. Savitha) on the ground that he
used to harass her on the illicit relationship of A-1
and A-3. On 07.07.2003, the deceased Mohan Kumar left
2
the house in the morning for his fertilizer shop and
did not return back. At about 9.30 p.m., the mother of
the deceased came to know through PW-6 (Basavaraju)
that the body of her son is lying on the side of the
road and that he had allegedly fallen from the bike.
The deceased was taken to the hospital where he
declared dead. The law was set in motion and all the
three accused were held under Section 302 IPC read
with 120(B),IPC.
3. The trial court convicted all the accused under
section 302 IPC read with 34 IPC and 120(B),IPC. On
appeal, the High Court maintained the conviction of
accused no. 1 and acquitted respondent nos. 1 & 2
(Accused nos. 2 and 3).
4. we have heard Mr. Joseph Aristotle, learned
counsel appearing for the state of Karnataka.
5. Though the respondents have entered appearance
through counsel but at the time of hearing the matter
none appears on behalf of the respondents. We have
carefully perused the impugned judgment, evidence and
materials on record.
6. Insofar as respondent no. 1 (accused No. 2) -
P. Ravi Kumar @ Ravi is concerned, the prosecution
relies upon the extra judicial confession made to PW-2
(Auto Driver) who is stated to be the friend of
accused nos. 1 and 2. PW-2 has stated that about 20
days prior to the date of incident, when he was
3
sitting in the auto, A-1 was with him and that accused
no. 1 asked him to chase the deceased who was going on
his motorcycle. PW-2 further stated that about 20
days later accused nos. 1 and 2 approached him and
said to have made extra judicial confession that they
had committed the murder of deceased Mohan Kumar to
whom on earlier occasion they chased. Though PW-2 in
his chief examination stuck to his version, when he
was cross examined, he resiled from his earlier
version and consequently PW-2 was treated hostile.
When PW-2 resiled from his earlier statement, his
statement recorded by PW-22 (Judicial Magistrate)
under Section 164 Crl.PC may not be of any relevance;
nor can it be considered as substantive evidence to
base the conviction.
7. So far as the evidence of PW-3 is concerned, it
is only confined to the extra judicial confession made
by the first accused.
8. Yet another piece of evidence relied upon by
the prosecution is that the evidence of PW-4 who is
stated to be the friend of A-2.
9. Case of the prosecution is that on the night of
occurrence A-1 and A-2 went to the residence of PW-4
(M.G. Rajashekher @ Raju) and A-2 clothes were blood
stained and A-1 wearing sweater. Both A-1 and A-2 said
to have made extra judicial confession to PW-4. But
when PW-4 was examined in the court, PW-4 stated that
4
accused nos. 1 and 2 came to his residence on the
night of 07.07.2003 and cloth of accused no. 2 was
blood stained. PW-4 further stated that when he
questioned accused No. 1, he stated that they were
travelling in an auto towards Karthikere, it toppled
and in that process they sustained injuries. The above
said evidence of PW-4 explaining the blood stains on
the cloth of accused no. 2 due to toppling of auto
does not advance case of the prosecution that A-1
conspired with A-2 who committed the murder of
deceased Mohan Kumar. In any event extra judicial
confession is a weak piece of evidence, which cannot
form basis for conviction and unless supported by
other substantive evidence, which is lacking in this
case.
10. Insofar as accused no. 3 is concerned,
prosecution relies upon exhibit P-8 and P-9.
Photographs were recovered on the disclosure statement
of accused no. 3. In this regard, prosecution has
examined PW-12 (photographer) who has stated that
accused nos. 1 and 3 came to his studio and took joint
photographs (Exhibit P-8 & P-9). The said photographs
at the most may only show that A-1 and A-3 has illicit
relationship. There is no evidence adduced to prove
that A-3 had hatched conspiracy with A-2 to commit the
murder of Mohan Kumar.
5
11. Upon appreciation of the evidence adduced by
the prosecution in particular PW-2 , PW-20 and PW-4,
the High Court has held that the guilt of A-2 and A-3
has not been established beyond reasonable doubt. We
do not find any ‘compelling reason’ or ‘substantial
infirmity’ warranting interference with the order of
acquittal of respondent nos. 1 and 2 (Accused Nos. 2
and 3).
12. The appeals are, accordingly, dismissed.
….......................J.
[R. BANUMATHI]
…......................J.
[VINEET SARAN]
NEW DELHI
16TH AUGUST, 2018 

Whenever accused-party sustains injuries in the same occurrence and when the injuries are grievous in nature it is incumbent upon the prosecution to explain the injuries on the person of the accused. In the present case, the prosecution has not chosen to explain the injuries sustained by the appellant-Manphool (A-1), meaning thereby that the real genesis of the occurrence has not been placed before the Court. Nonexplanation of the injuries, which are ten in number, on the person of the appellant-Manphool, raises a doubt about the sequence of occurrence, as projected by the prosecution. After having considered the nature of injuries sustained by the appellant-Manphool (A-1), there is a possibility that the appellant-Manphool (A-1) has acted in self-defence and the defence plea cannot be rejected in toto. It may be noted that the appellant-Manphool (A-1) has exceeded his limit in private defence by firing at the deceased-Mahabir (D-2) and also causing head injuries on the person of the deceased-Gopi Chand (D-1). Considering the defence plea and the nature of the injuries sustained by the appellant-Manphool Singh (A-1), conviction of the appellants under Section 302 I.P.C. cannot be 6 sustained. In our considered view the conviction of the appellants has to be modified under Section 304 I.P.C. (10) Considering the fact and circumstances of the case, and that the accused had acted in self defence which is proved to have exceeded, the conviction of the appellants under Section 302 I.P.C. has to be modified. As the occurrence happened in a free fight between both the parties, conviction of the appellants under Section 302 I.P.C. is modified to Section 304 Part II I.P.C. (11) It is stated that the only surviving appellant-Surender (A-5) has already undergone imprisonment of 8-9 years. In these circumstances, sentence of the appellant-Surender Singh is reduced to the period already undergone by him however conviction is upheld, as above. (12) The appeal is accordingly allowed.

1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No(s). 1817 OF 2009
MANPHOOL SINGH & ORS. Appellant(s)
 VERSUS
THE STATE OF HARYANA Respondent(s)
WITH
Criminal Appeal No. 332 OF 2009
THE STATE OF HARYANA Appellant(s)
 VERSUS
PAWAN & ORS. Respondent(s)
J U D G M E N T
R. BANUMATHI, J.
Criminal Appeal NO.1817 of 2009 :
(1) Being aggrieved by the conviction under Sections 302 r/w
149 I.P.C. and the sentence of life imprisonment, the
appellants have preferred this appeal.
(2) During the pendency of the appeal, it is stated at the Bar
that appellants no.1-Manphool Singh (A-1), No.2-Rattan Singh
(A-2) and No.4-Zile Singh (A-6) have died and the only
contesting appellant i.e. appellant no.3-Surender Singh (A-5)
is alive.
2
(3) Summary of the case and details are briefly stated. Case
of the prosecution is that due to previous enmity, on 14th
March, 1994 when deceased no.1, Gopi Chand, and deceased no.2,
Mahabir, were sitting at the house of Harpal, appellants and
other co-accused (since acquitted) are alleged to have attacked
the complainant party. Due to the said attack Gopi Chand (D1)
and Mahabir (D-2) died. Accused, Surender Singh, Zile Singh
and Rattan Singh are said to have attacked Gopi Chand (D-1)
with lathis and accused-Manphool Singh fired at Mahabir (D-2)
with a gun.
(4) To bring home the guilt of the accused before the trial
court, the prosecution has examined three witnesses, namely,
Harpal (PW-9), Manphool (PW-10) and Mahendra (PW-11) who have
all stated that the accused have formed unlawful assemble on
the fateful day and that Surender Singh (A-5), Zile Singh (A-6)
and Rattan Singh (A-2) attacked Gopi Chand (D-1) with lathis
and Manphool (A-1) fired at Mahabir (D-2). Their evidence to
some extent is also corroborated by the medical evidence. Based
on the evidence of the eye-witnesses, the recovery of weapons
and the medical evidence, the trial court convicted the
appellants under Sections 302 r/w 149 and 307 r/w 149 I.P.C.
The trial court also convicted other accused Narender (A-3),
Pawan Kumar (A-4) and Vijay (A-7) by invoking Section 149
I.P.C. On appeal, the High Court confirmed the conviction of
the appellants herein but acquitted the accused, namely,
Narender (A-3), Pawan Kumar (A-4) and Vijay (A-7). Being
3
aggrieved of the acquittal of the said accused, the State has
preferred Criminal Appeal no.332 of 2009.
(5) We have heard Mr. Rishi Malhotra, learned counsel
appearing for the appellants and Mr. Arun Bhardwaj, learned
Additional Advocate General appearing for the respondent-State.
The main contention urged by learned counsel for the appellants
is that the occurrence was at the night time and the evidence
of the eye-witnesses, as to overt act of each of the accused,
is not believable. It is further submitted by learned counsel
that the defence put fourth by the accused in exercise of the
private defence by Manphool (A-1) and others in the occurrence,
was not properly appreciated by the courts below. In this
regard, learned counsel has drawn our attention to the evidence
of Dr. P.K. Jain (PW-5), Dr. K.C. Kajal (DW-1) and Dr. P.K.
Anand (DW-2) who have issued wound certificate regarding the
injuries sustained by the appellant-Manphool (A-1). It was
submitted that on the night of the occurrence when Manphool (A1)
was coming home he was intercepted by the complainant party
and attacked and Manhool (A-1) has reacted in private defence
which aspect was not properly considered by the courts below.
(6) We have carefully gone through the rival submissions, the
materials on record and the impugned judgment.
(7) No doubt eye-witnesses Harpal (PW-9), Manphool (PW-10) and
Mahendra (PW-11) have stated about the occurrence and the overt
act of the accused, the only question falling for consideration
4
is whether the accused-party acted in self-defence. In his
questioning under Section 313 Cr.P.C., Manphool (A-1) has
stated that on the date of occurrence when he reached near the
house of Pirthi Singh at about 9 p.m., deceased-Gopi Chand (D1)
subjected him and questioned him about his sons and
subsequently Manphool (A-1) was given a lathi blow on his head
by Gopi Chand (D-1) along with Tara Chand and Lal Chand; and
that Gopi Chand (D-1) was having a gun at that point.
Appellant-Manphool has stated that having seen Gopi Chand (D-1)
armed with the gun, he has to necessarily act in self-defence
in order to protect himself. It is pertinent to point out that
in the occurrence, appellant-Manphool has sustained as many as
ten injuries, as may be seen from the evidence of Dr. P.K. Jain
(PW-5) and Exhibit PN issued by him referring to the injuries
sustained by the appellant-Manphool. On perusal of the
evidence of Dr. P.K. Jain (PW-5), it is seen that the
appellant-Manphool has sustained six lacerated wounds and;
contusion and abrasion on the body including the lacerated
wound on the parietal region and left forearm etc. The
discrepancy in the medical evidence has not been properly
explained by the prosecution.
(8) Seemingly there appears to be a contradiction in the
medical evidence made on the person of the deceased-Gopi Chand
who sustained the fatal injuries. As per the evidence of Dr.
M.D. Sharma (PW-4) who issued post-mortem certificate, the
deceased-Gopi Chand (D-1) had only one single injury on his
5
head. However, Dr. D.S. Dangi (PW-8) who examined the deceased
Gopi Chand (D-1) has stated that the said deceased had two
lacerated wounds on the left side of the scalp and six
fractured wounds on his scalp. The contradiction about the
number of injuries sustained by the deceased-Gopi Chand (D-1)
has not been explained by the prosecution.
(9) Whenever accused-party sustains injuries in the same
occurrence and when the injuries are grievous in nature it is
incumbent upon the prosecution to explain the injuries on the
person of the accused. In the present case, the prosecution
has not chosen to explain the injuries sustained by the
appellant-Manphool (A-1), meaning thereby that the real genesis
of the occurrence has not been placed before the Court. Nonexplanation
of the injuries, which are ten in number, on the
person of the appellant-Manphool, raises a doubt about the
sequence of occurrence, as projected by the prosecution. After
having considered the nature of injuries sustained by the
appellant-Manphool (A-1), there is a possibility that the
appellant-Manphool (A-1) has acted in self-defence and the
defence plea cannot be rejected in toto. It may be noted that
the appellant-Manphool (A-1) has exceeded his limit in private
defence by firing at the deceased-Mahabir (D-2) and also
causing head injuries on the person of the deceased-Gopi Chand
(D-1). Considering the defence plea and the nature of the
injuries sustained by the appellant-Manphool Singh (A-1),
conviction of the appellants under Section 302 I.P.C. cannot be
6
sustained. In our considered view the conviction of the
appellants has to be modified under Section 304 I.P.C.
(10) Considering the fact and circumstances of the case, and
that the accused had acted in self defence which is proved to
have exceeded, the conviction of the appellants under Section
302 I.P.C. has to be modified. As the occurrence happened in a
free fight between both the parties, conviction of the
appellants under Section 302 I.P.C. is modified to Section 304
Part II I.P.C.
(11) It is stated that the only surviving appellant-Surender
(A-5) has already undergone imprisonment of 8-9 years. In
these circumstances, sentence of the appellant-Surender Singh
is reduced to the period already undergone by him however
conviction is upheld, as above.
(12) The appeal is accordingly allowed.
(13) The appellant-Surender Singh is on bail. His bail bonds
shall stand discharged.
Criminal Appeal NO(s).332 of 2009 :
Insofar as this appeal is concerned it is preferred by the
State challenging the acquittal of Pawan Kumar (A-4), Vijay
Singh (A-7) and Narender (A-3). Since the High Court has
acquitted them by invoking Section 149 I.P.C., we do not find
any good ground to interfere with the order of acquittal of the
respondents.
7
The appeal is accordingly dismissed.

..........................J.
 (R. BANUMATHI)
..........................J.
 (VINEET SARAN)
NEW DELHI,
AUGUST 16, 2018.