when the prosecution has been successful in proving the conspiracy between the accused as well as the accused committed the murder of the deceased, motive may not have that much relevance.

Hon'ble Mr. Justice Mukeshkumar Rasikbhai Shah
1
 NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 971 OF 2012
VIDYALAKSHMI @ VIDYA ..APPELLANT
VERSUS
STATE OF KERALA ..RESPONDENT
WITH
CRIMINAL APPEAL NOS. 852­853 OF 2014
ANAND SABARIRAJ @ AND ETC. ..APPELLANTS
VERSUS
STATE OF KERALA ..RESPONDENT
J U D G M E N T
M.R.SHAH, J.
As common question of law and facts arise in this group of
appeals   and   as   such   arise   out   of   the   common   impugned
2
judgment and order passed by the Division Bench of the High
Court of Kerala at Ernakulam, all these appeals are decided and
disposed of by this common judgment and order.
2. Feeling   aggrieved   and   dissatisfied   with   the   impugned
common judgment and order passed by the Division Bench of the
High Court, by which the High Court has dismissed the said
appeals preferred by the respective Accused Nos. 1 to 3 and has
confirmed the judgment and order of conviction and sentence
imposed   by   the   learned   trial   Court   convicting   the   original
Accused for the offences punishable under Section 302 read with
Section 34 of the IPC (original Accused Nos. 1 & 2), for the
offences   punishable   under   Section   120B   of   the   IPC   (original
Accused   Nos.   1   &   3)   and   for   the   offences   punishable   under
Section 302 read with Section 114 of the IPC (original Accused
No.3) and convicting the original Accused Nos. 1 & 2 for the
offences under Section 379 read with Section 34 of the IPC, the
original accused Nos. 1 to 3 have preferred the present appeals.
3. As   per   the   case   of   the   prosecution,   Accused   No.1   and
Accused No.3 had been lovers for more than last three years.
The marriage of the Accused No.3 was solemnised on 7.6.2006
with one Anandaraman (the deceased) in Chennai against the will
3
of Accused No.3.  It was the case of the prosecution that after the
solemnisation of the marriage with a view to live with Accused
No.1   after   doing   away   with   Anandaraman   before   18.06.2006,
Accused No.1 and Accused No.3 hatched up a conspiracy and
solicited the assistance of A2 and subsequently A2 became a
party to the conspiracy.  It was the further case on behalf of the
prosecution that Accused No.3 after the marriage planned with
Anandaraman to go to different tourist centres in Kerala under
the   guise   of   a   honeymoon   celebration   and   disclosed   the
particulars of such journeys and visits to Accused No.1.   The
couple started from Chennai on 16.06.2006 to Kerala for visiting
Guruvayoor and Munnar.  Accused No.3 with pre­determination
passed   information   to   Accused   No.1   through   mobile   phone,
whereby   to   facilitate   Accused   No.1   and   Accused   No.2   to
pursue/follow the couple.  Accused No.3 led Anandaraman to the
Kundala Dam at Munnar (place of the offence) under the pretext
of   going   tour   and   thereafter   having   boating   she   took
Anandaraman to a lonely place and brought about the arrival of
first and second accused thereby passing information over mobile
phone.  The case of the prosecution is that the deceased was led
4
by Accused No.3 to a catchment area which afforded opportunity
for implementation of the scheme of conspirators. 
3.1 According to the prosecution, AI and A2 who had reached
there   found   the   opportunity   and   caused   the   death   of   the
deceased by ligature strangulation with MO.7 (Camera Strip) and
smothering.    It   was  further  the   case  of  the  prosecution   that
Accused No.2 committed robbery of Rs.13,000/­ kept inside the
pocket of the pants worn by Anandaraman and Accused No.1
committed robbery of wrist watch valued at Rs.2,000/­ and the
camera valuing to Rs.10,000/­, totalling to Rs.25,000/­.  As per
the case of the prosecution, as part of the conspiracy, Accused
No.3 removed herself the gold chain from her neck and entrusted
to Accused No.1 and she herself stained her dress with stain of
blood and after being satisfied from message over mobile phone
that Accused Nos. 1 and 2 had escaped, misrepresented the facts
and   to   create   a   story   as   if   some   unknown   persons   have
committed   the   robbery   and   had   killed   Anandaraman   taking
advantage of the lonely place. The first information report was
lodged before the police by PW1 – Sam Vincent, the driver of the
vehicle in which A3 and the deceased had travelled.  The Circle
Police   Inspector   started   investigation.     According   to   the
5
prosecution, thereafter Accused No.1 & 2 had panicked on seeing
a police van proceeding to Kundala Dam – the scene of the crime.
They came to know that word had gone around that a crime had
been committed and the police were looking for two persons who
had allegedly committed that crime.   They somehow wanted to
leave   Munnar   to   some   other   place.     Thereafter   they   made
enquiries with PW2 and others as to how they could hurriedly
leave Munnar.  Their conduct allegedly aroused suspicion in the
mind of PW2 and his friends.  They ensured that A1 and A2 did
not   escape   and   informed   the   police   about   the   suspicious
activities of A1 and A2.  Thereupon A1 and A2 were taken to the
police station. 
3.2 During   the   course   of   the   investigation,   the   Investigating
Officer collected incriminating material against the accused.  The
Investigating   Officer   also   recorded   the   statements   of   the
concerned witnesses.   The Investigating Officer found that the
clothes worn by A1 to A3 were stained with human blood.  They
further found that the nail clippings of A1 and A2 had blood
marks   on   them.     They   recovered   MO.6   –   tour   programme   –
itinerary of A3 and the deceased in the handwriting of A3 from
the possession of A1. During the course of the investigation, the
6
IO recovered, at the instance of Accused Nos. 1 & 2, watch,
camera and  cash  of the deceased and the gold chain  of A3,
which, according to A3, was taken away from her by force by the
unknown miscreants.  The deceased, at the scene of the crime,
had some scalp hairs of the miscreants within his fingers, which
came   to   be   seized   by   the   police   while   preparing   the   inquest
report.     On   conclusion   of   the   investigation,   the   Investigation
Officer filed the charge sheet/final report against the accused for
the offences punishable under Section 302 read with Section 34
IPC, Section 302 read with Section 120B IPC, Section 302 read
with Section 114 IPC and Section 379 IPC against the respective
Accused Nos. 1 to 3. The case was committed to the Court of
Sessions.   The accused pleaded not guilty and therefore they
came to be tried by the learned Sessions Court for the aforesaid
offences. 
4. To prove the charge against the accused, the prosecution
examined in all 40 witnesses.  The prosecution also produced on
record through witnesses the documentary evidence – Exhibits
P1  to   P80.      M.Os  1   to  51  series   were  also   marked  by  the
prosecution.   Thereafter, the prosecution submitted the closing
pursis.  The accused did not adduce any evidence at the stage of
7
defence.   However, Exhibit D1 was marked by A2 when PW29
was examined. Thereafter, the statements of the accused under
Section   313   of   the   Cr.P.C.   were   recorded.     In   their   313
statements, the accused had taken up the defence of total denial.
It appears that A1 and A3 did not dispute their relationship.  In
fact, they did admit their relationship.  But, according to them,
the   relationship   had   been   put   to   an   end   in   2004   and   that
thereafter, A3 had willingly married with the deceased.   They
denied any contact between them after 2004.  A3 filed a detailed
written statement.    It was the case on behalf of the accused that
they   were  not   in  any  way  responsible  for  the   murder   of  the
deceased   Anandaraman   and   that   they   had   been   falsely
implicated by the police.
5. The learned trial Court, on appreciation of the evidence,
came to the conclusion that the prosecution has successfully
established   the   offence   of   conspiracy   under   Section   120B
between A1 and A3.   The learned trial Court also came to the
conclusion that the murder of the deceased Anandaraman was
executed by A1 and A2 in the presence of A3 at the scene of the
crime ­  Kundala dam using MO7 – Camera Strip.  The trial Court
also observed and found that the death of the deceased was
8
caused by a ligature strangulation and there were also attempt to
smother the deceased.  The learned trial Court further came to
the conclusion that attempts were made deliberately to mislead
others   by   stating   that   it   was   the   case   of   some   unknown
miscreants to commit theft/robbery of valuable articles which the
deceased and A3 were having with them.  Thereafter, the learned
trial Court convicted the original Accused No.1 – Anand for the
offence punishable under Section 302 of the IPC and also for the
offence under Section 120B and Section 379 of the IPC.   The
learned   trial   Court   sentenced   the   original   Accused   No.1   to
imprisonment for life and to pay a fine of Rs. 5,000/­ for the
offence punishable under Section 302 of the IPC, and in default
of payment of fine, to undergo rigorous imprisonment for one
year more.  He is also sentenced life imprisonment and to pay a
fine of Rs.5,000/­ under Section 120B of the IPC, and in default
of payment of fine, to undergo rigorous imprisonment for one
year more.   While convicting the original Accused No.1 for the
offence punishable under Section 379 of the IPC, learned trial
Court further sentenced to undergo rigorous imprisonment for
three years. 
9
5.1 The learned trial Court convicted original Accused No.2 for
the offence punishable under Section 302 IPC and sentenced him
life imprisonment and to pay a fine of Rs.5,000/­, in default of
payment of fine, rigorous imprisonment for one year more.  The
learned trial Court sentenced Accused No.2 to  undergo three
years rigorous imprisonment for the offence punishable under
Section 379 of the IPC.
5.2 The learned trial Court convicted the Accused No.3 for the
offences punishable under Sections 302 read with 114 of the IPC
and sentenced her to undergo life imprisonment and to pay a fine
of Rs.50,000/­, in default of payment of fine, to further undergo
three   years   rigorous   imprisonment.     Accused   No.3   is   also
sentenced for life imprisonment and to pay a fine of Rs.50,000/­
under Section 120B of the IPC, and in default of payment of fine,
to further undergo three years rigorous imprisonment. 
5.3 The   learned   trial   Court   ordered   that   the   substantive
sentences of imprisonment awarded to each of the accused shall
run concurrently.
6. Feeling aggrieved and dissatisfied with the judgment and
order of conviction and sentence passed by the Sessions Court,
the original Accused Nos. 1 to 3 preferred appeals before the High
10
Court   of   Kerala   at   Ernakulam.     By   the   common   impugned
judgment and order, the High Court has dismissed the appeals.
Hence, the present appeals.
7. Learned   counsel   appearing   on   behalf   of   the   respective
appellants   have   vehemently   submitted   that   in   the   facts   and
circumstances of the case, both, the learned trial Court as well as
the High Court have committed a grave error in convicting the
respective accused for the offences punishable under Section 302
of the IPC with the aid of Section 34, 114 and Section 120B of the
IPC.
7.1 It is vehemently submitted by the learned counsel appearing
on behalf of the respective appellants that as such the High
Court has not properly appreciated the fact that it was a case of
circumstantial   evidence,   and   therefore   the   prosecution   is
obligated to prove all those circumstances which leave no manner
of   doubt   that   all   the   circumstances   are   linked   up   with   one
another   and   the   chain   has   not   broken   in   between.     It   is
submitted therefore that unless the chain of circumstances is
complete leading to the only conclusion that it is the accused
alone had committed the offence, the Court is not justified in
convicting the accused.
11
7.2 It is further submitted on behalf of the respective appellants
that both the Courts below have materially erred in holding that
Accused No.3 and Accused No.1 entered into a conspiracy to
murder the deceased Anandaraman.
7.3 It   is   further   submitted   by   the   learned   counsel   for   the
respective   appellants   that   even   the   prosecution   has   failed   to
prove the motive put forward by the prosecution.  It is submitted
that, according to the prosecution, marriage against the will of
the Accused No.3 was the motive.  It is however submitted by the
learned counsel that Accused No.3 categorically stated in her 313
statement and in the written statement that she was very much
happy with the deceased and in fact there were no relationship
continued with  Accused No.1 after the marriage and/or even
after 2004.
7.4 It is further submitted by the learned counsel appearing for
the respective appellants that the Courts below have materially
erred in holding that Accused No.3 and Accused No.1 entered
into a conspiracy to commit the murder of the deceased solely on
the basis of the call details/calls from deceased phone to Accused
No.1.   It is further submitted by the learned counsel that even
the prosecution has failed to prove that the love letters between
12
Accused No.3 and Accused No.1 were in existence even at the
time of the incident.  It is submitted that the evidence of PWs 22,
23 and 35 even if at the face value do not prove that the love
affair between the A3 and A1 was in existence. 
7.5 It is further submitted by the learned counsel that even the
prosecution has failed to prove by leading cogent evidence that
the itinerary – MO.6 which was alleged to be found from A1,
which was alleged to be in the handwriting of A3 was in fact in
the handwriting of A3.
7.6 It is further submitted by the learned counsel appearing on
behalf of Accused Nos. 1 & 2 that the prosecution has failed to
prove by leading cogent evidence the presence of Accused Nos. 1
&   2   at   Guruvayoor.     It   is   further   submitted   by   the   learned
counsel appearing for A1 and A2 and even by the learned counsel
appearing for A3 that the prosecution has failed to prove by
leading cogent evidence that Accused Nos. 1 & 2 met Accused
No.3 at Arunodhayam Tourist Home.
7.7 It is further submitted by the learned counsel appearing on
behalf of Accused No.1 that the courts below have materially
erred in holding that the tour programme/itinerary of Accused
No.3 and the deceased was recovered from Accused No.1. 
13
7.8 Making the above submissions, it is prayed to allow the
present appeals by setting aside the impugned common judgment
and order passed by the High Court confirming the judgment and
order of conviction and sentence passed by the learned Sessions
Court and consequently acquit the accused for the offences for
which they are held to be guilty.
8. The present appeals are vehemently opposed by the learned
counsel appearing on behalf of the respondent – State.
8.1 It is vehemently submitted by the learned counsel appearing
on   behalf   of   the   respondent­State   that   in   the   facts   and
circumstances   of   the   present   case   and   on   appreciation   of
evidence   on   record,   the   Courts   below   have   rightly   held   the
accused guilty for having committed the murder of the deceased
Anandaraman.
8.2 It is vehemently submitted by the learned counsel that in
the present case the prosecution has been successful in proving
by leading cogent evidence that the Accused No.1 and Accused
No.3   were   in   love   and   were   having   relationship   which   even
continued after the marriage of A3.  It is further submitted by the
learned counsel appearing on behalf of the respondent­State that
prosecution in the present case has been successful in proving
14
the conspiracy between the accused to commit the murder of the
deceased.
8.3 It is submitted by the learned counsel for the respondentState   that   in   the   present   case   the   prosecution   has   been
successful in establishing and proving the presence of A1 and A2
at all the places where A3 and the deceased went and that from
even Guruvayoor to Echo Point where the incident has taken
place.     It   is   submitted   that   the   aforesaid   is   established   and
proved by the prosecution by examining the relevant witnesses,
namely PW2 and PW4 and also by leading documentary evidence.
8.4 It is further submitted that even the detailed itinerary/tour
programme   of   A3   and   the   deceased,   which   was   in   the
handwriting of A3 was recovered from A1 and it was established
and proved that wherever A3 and the deceased went as per the
tour programme, A1 and A2 also followed.  It is further submitted
by the learned counsel appearing on behalf of the State that in
the present case the prosecution has been successful in proving
that   all   throughout   A1   and   A3   were   in   touch   and   having
conversation on mobile phones. 
15
8.5 It   is   further   submitted   by   the   learned   counsel   for   the
respondent­State that even there was a recovery from Accused
Nos. 1 & 2 of the cash, gold chain, which was also looted. 
8.6 It is further submitted by the learned counsel that in the
present case the prosecution has been successful in completing
the chain of events leading to the conclusion that (1) accused
hatched the conspiracy; (2) the relationship between A1 & A3; (3)
that A1 & A2 followed A3 and the deceased   and they were
present at all the places where A3 and the deceased went/stayed;
(4) that all through out A3 and A1 were in contact and were
having conversation over mobile phones; and (5) that the recovery
of MO6 – tour programme of A3 and the deceased, which was in
the handwriting of A3 and which was recovered from A1. It is
submitted by the learned counsel appearing on behalf of the
State   that   all   the   above   circumstances   lead   to   irresistible
concliusion of guilt against accused persons.  It is submitted that
the   links in   the  chain   of  circumstances  has  been   completely
established by the prosecution.   It is submitted that therefore
neither   the   learned   Sessions   Court   nor   the   High   Court   have
committed an error in convicting the accused for the offences
punishable under Section 302 with the aid of Sections, 34, 114,
16
120B and 379 of the IPC.  Therefore, it is prayed to dismiss the
present appeals.
9. We have heard the learned counsel appearing on behalf of
the respective parties at length.
9.1 At the outset, it is required to be noted that in the present
case, original Accused Nos. 1 & 2 are convicted for the offences
punishable under Section 302 of the IPC with the aid of Section
34 of the IPC, original Accused Nos. 1& 3 are convicted for the
offences punishable under Section 302 of the IPC with the aid of
Section   120B   of   the   IPC   and   original   Accused   No.3   is   also
convicted for the offences punishable under Section 302 of the
IPC read with Section 114 of the IPC.  Original Accused Nos. 1 &
2 are also convicted for the offences under Section 379 read with
Section 34 of the IPC.
9.2 That the learned Sessions Court on appreciation of evidence
on   record,   both   oral   as   well   as   documentary,   held   that   the
prosecution has been successful in establishing and proving that
the accused entered into a conspiracy to commit the murder of
the deceased.   On appreciation of the evidence, the trial Court
found and held that original Accused Nos. 1 & 2 right from the
beginning followed Accused No.3 and the deceased and wherever
17
the   Accused   No.3   and   deceased   visited/stayed,   the   original
Accused Nos. 1 & 2 followed them.  The learned trial Court also
found that all through out Accused Nos. 1 & 2 and Accused No.3
were in contact and were having the conversation over mobile
phones.  Right from the very beginning from Guruvayoor to Echo
Point where the incident had taken place the presence of Accused
Nos. 1 & 2 has been established and proved.  That the learned
trial Court convicted the accused for the aforesaid offences and
sentenced   them   to   undergo   life   imprisonment   and   other
sentences noted hereinabove and the same have been confirmed
by the High Court by the impugned common judgment and order.
10. It is mainly contended on behalf of the accused that as it is
case of circumstantial evidence, the prosecution has to establish
and prove and/or complete the chain of circumstances, which
would lead to the only conclusion that it is the accused who
committed   the   offence.     It   is   also   the   case   on   behalf   of   the
accused that the prosecution failed to establish and prove the
motive, as according to Accused No.3 there was no relationship
since   long  and   at   least  at   the  time  of   marriage   and/or   post
marriage.   We are conscious of the fact that this is a case of
circumstantial   evidence   and   therefore   the   prosecution   has   to
18
establish and prove and complete the chain of circumstances
which lead to the guilt of the accused. 
11. Having heard learned counsel for the respective parties and
on appreciation of the evidence on record, we are satisfied that in
the present case the prosecution has been successful in proving
and/or completing the chain of circumstances which would lead
to the only conclusion that Accused Nos. 1 to 3 entered into a
conspiracy; that Accused Nos. 1 & 2 committed the murder of the
deceased and Accused No.3 was a party to the conspiracy.
12. From the judgment and order passed by the learned trial
Court, it appears that the learned trial Court enumerated as
many as 33 circumstances against the accused and the High
Court considered as many as 28 relevant circumstances against
the accused.  The 33 circumstances enumerated and considered
by   the   learned   trial   Court   against   the   accused   are   stated   in
paragraph 58 and the 28 circumstances considered by the High
Court while holding the accused guilty for the murder of the
deceased   are   narrated   in   paragraph   18   of   the   impugned
judgment   and   order.     On   considering   the   entire   evidence   on
record, both oral as well as documentary, the prosecution has
been successful in proving that Accused Nos. 1 & 2 followed
19
Accused No.3 and the deceased at Guruvayoor, Munnar and also
at Echo Point.   There was a recovery of detailed itinerary/tour
programme of A3 and the deceased from A1 which was in the
handwriting of A3.  The prosecution has also been successful in
proving that A1 and A2 met A3 at Arunodhayam Tourist Home
where A3 and the deceased stayed (from the deposition of PW4).
The prosecution has also established and proved that Accused
Nos. 1 & 3 stayed at Munnar on 17.06.2006 by leading cogent
evidence and examining PW5 – Abdul Rasheed, Manager of Arafa
Tourist Home at Munnar, and also by leading the documentary
evidence – P5, the tourist home register. The prosecution has also
been   successful   in   proving   by   leading   cogent   evidence   that
Accused   Nos.   1   &   2   went   to   Echo   Point   where   A3   and   the
deceased   had   gone   and   the   place   where   the   deceased   was
murdered.  The aforesaid has been established and proved by the
prosecution by examining PW2.  Thus, the presence of Accused
Nos. 1 & 2 was found right from the beginning at Guruvayoor,
Munnar, Kundala Dam and Echo Point.  This is required to be
appreciated   from   the   fact   that   there   was   a   recovery   of
itinerary/tour programme of A3 and the deceased from A1 which
was found to be in the handwriting of A3.   It has also been
20
established and proved by leading cogent evidence by examining
the BSNL personnel that there was a conversation on the mobile
phones between A3 and A1 from the mobile of the deceased
(which was used by A3) and the mobile of A1.  Therefore, it has
been   established   and   proved   that   Accused   Nos.   1   &   2   were
following A3 and the deceased as per the instructions by A3
and/or that all the accused were in contact with each other even
at the time when the incident had taken place. All the aforesaid
circumstances lead to irresistible conclusion of guilt against the
accused   persons.     The   aforesaid   circumstances   lead   to   the
conclusion that the prosecution case can be taken to have been
proved   beyond   all   reasonable   doubts.     From   the   aforesaid
circumstances proved, it can be said that the links in the chain of
circumstances   have   been   completely   established.     All   the
aforesaid circumstances leave no manner of doubt that all the
circumstances are linked up with one another and the chain is
not   broken   in   between.   Thus,   the   prosecution   has   been
successful in completing the chain of circumstances leading to
the only conclusion that all the accused entered into a conspiracy
to commit the murder of the deceased and that in fact A1 and A2
committed the murder of the deceased.
21
13. So far as the submission of the Accused No.1 and Accused
No.3 that in the present case the prosecution has failed to prove
the  motive and  to  prove  by leading  cogent  evidence that  the
relationship   between   A1   and   A3   continued   even   after   the
marriage is concerned, it is required to be noted that as such
Accused No.1 in fact denied having any love affair with Accused
No.3.   However, Accused No.3 herself in her written statement
had admitted that they were in love earlier.   But, according to
Accused No.3, thereafter there was no relationship continued.
Therefore, Accused No.1 came out with a false defence.  Be that
as it may, when the prosecution has been successful in proving
the   conspiracy   between   the   accused   as   well   as   the   accused
committed the murder of the deceased, motive may not have that
much relevance.  We are more than satisfied that in the present
case the prosecution has been successful in proving the case
against the accused.  We are in complete agreement with the view
taken by the High Court as well as the learned trial Court.  We
see no reason to interfere with the impugned judgment and order
passed by the High Court.
14. In view of the aforesaid reasons, all the appeals fail and
deserve to be dismissed and are accordingly dismissed.
22
……………………………………J.
[UDAY UMESH LALIT]
NEW DELHI; ……………………………………J.
FEBRUARY 15, 2019. [M.R. SHAH] 
      

Sections 406, 468, 120­B IPC.= It was further alleged that, subsequently, on careful perusal of the policies, the complainant surprisingly noticed that neither she nor her husband nor her son ever signed any proposal form or any other documents which were required at the time of taking the life insurance policies, as per the rules and regulations of IRDA, nor even appeared for any medical examination before any 8 doctor or hospital authority, but the policies were issued in the name of the complainant, moreover the booklet of policy containing the First Premium Receipt, policy schedule, proposal form, medical report are all Xerox copy and all the documents, even the First Premium Receipt and policy schedule do not bear any original signature of signatory i.e. Accused nos. 2 and 3 – Appellants herein. 4.12 It was further alleged that, the proposal forms were shown to be signed by the complainant, but the complainant never signed over the said policies and it is abundantly clear that her signatures are forged for the wrongful gain by the accused persons. It has been further revealed that the accused persons in conspiracy with each other forged the signatures of the complainant, her husband and her son Sri Samir Bajaj with an intention to deceive them for the wrongful gain. The said policies were issued through Accused no. 4 and all the accused persons are related to each other and interested persons who are getting monetary benefits for the issuance of these life insurance policies and all the accused persons are involved in committing the crime of cheating, forgery, criminal misappropriation of money and 9 criminal conspiracy. It is crystal clear that at the very inception of conversation with the complainant through her husband, the accused persons have been in conspiracy with each other and induced the complainant to deliver the cheques with an intention to deceive the complainant for the wrongful gain.= we allow the parties to compound the offences , even though the offences alleged are non­compoundable, as the dispute between the parties predominantly or overwhelming seems to be of a civil nature and that the dispute is a private one and between the two private parties. Accordingly, it is ordered that on payment of a sum of Rs.10,00,000/­ by the Appellants to the original Complainant to be deposited in the bank account of the original Complainant within a period of two weeks, the criminal proceedings being C.R. Case No. 40C of 2014 pending in the Court of learned CJM, Tinsukia, stand quashed. On furnishing proof of deposit of Rs.10,00,000/­, the Registry to return the amount of Rs.3,75,000/­ along with interest, if any, to the Appellants herein, which the Appellants have deposited pursuant to the earlier order of this Court.

Hon'ble Mr. Justice Mukeshkumar Rasikbhai Shah
1
NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 277 of 2019
[Arising out of SLP (Crl.) No. 2986 of 2015]
Srinivasan Iyenger and Anr. .. Appellants
Versus
Bimla Devi Agarwal & Ors. .. Respondents
(WITH CRIMINAL APPEAL NO. 278 OF 2019 @ SLP (Crl.) No.
2990 of 2015)
J U D G M E N T
M. R. SHAH, J.
Leave granted in both the appeals.
1. As common question of law and facts arise in both these
appeals and, as such, these appeals arise out of the impugned
common judgment and order passed by the High Court, both
these appeals are being decided and disposed of together by this
common judgment.
2
2. Feeling   aggrieved   and   dissatisfied   with   the   impugned
judgment and order dated 28.01.2015 passed by the High Court
of Gauhati in Criminal Petition No. 634 of 2014, by which the
High Court has rejected the said application preferred by the
Appellants   herein  to   quash   the   criminal   proceedings  initiated
against   them   by   Respondent   No.   1   herein   –   the   original
Complainant,   the   original   Accused   –   original   Applicants   have
preferred the present appeals. 
3. That a private complaint came to be filed by the original
Complainant (Respondent No. 1 herein) through her husband
(Respondent   No.   2   herein   and   power   of   attorney   holder   of
Respondent No. 1) before the Court of learned CJM at Tinsukia,
Assam against the Appellants herein and another for the offences
punishable under Sections 406, 468, 120­B IPC.  At this stage, it
is required to be noted that Respondent No. 4 – company can be
said to be a broker agent of the Reliance Life Insurance Company
and the relationship between them is governed by the Insurance
Regulatory   and   Development   Authority   (Insurance   Brokers)
Regulations,   2002.     That   the   original   Complainant   filed   a
3
complaint against in all 12 persons.  That the said complaint was
registered as C.R. Case No. 42C of 2014. 
4. It was the case of the original Complainant that she was the
holder of an insurance policy issued by the ICICI Life Prudential
in the month of August, 2013. 
4.1 It was alleged that the complainant received a call from one
Sri Navin Mittal, who identified himself as an Executive Officer of
Reliance Life Insurance Company Ltd.
4.2 It   was   further   alleged   that   the   said   caller   informed   the
complainant   over   phone   that   as   per   the   instruction   of   the
Insurance   Regulatory   and   Development   Authority   (for   short
“IRDA”),   “the   fund   related   to   Life   Insurance   Policy   of   the
complainant with the ICICI Life Prudential has been released
through   the   Reliance   Life   Insurance   and   also   informed   that
bonus amount of Rs.19,245/­, Rs.1,94,730/­ and Rs.96,500/­
against the said life insurance policy is ready to be disbursed in
favour   of   the   complainant   by   the   Reliance   Life   Insurance
Company Ltd. (Accused no. 1 in C.R. Case No. 40C of 2014)
4
4.3 It   was   further   alleged   that   the   said   caller   had   further
requested  the   complainant   to   send  a   cheque  for  Rs.50,000/­
drawn in favour of the Insurance Company Ltd. as well as Pan
Card and identity cards of the family members of complainant for
verification.  The caller also informed the complainant that after
necessary verification, the amount in the said cheque together
with   bonus   amount   would   be   released   in   favour   of   the
complainant.
4.4 It was further alleged that believing such statements to be
true, the complainant sent a cheque of Rs.50,000/­ to Accused
no. 1 along with copies of other documents, sought for.  The said
cheque of Rs.50,000/­ was received by Accused No. 1 in due
course.     Thereafter,   in   the   month   of   November   2013,   the
complainant received another call from phone No. 09210657675.
This   time,   the   callers   were   Smt.   Meenakshi   Rawat   and   Sri
Deepak Kapoor.
4.5 It   was   further   alleged   that   these   callers   introduced
themselves to be the Executive Officers of Accused no. 1.   The
second caller also narrated the facts which were already narrated
to the complainant by the first caller.   The second caller also
5
requested   the   complainant   to   send   one   more   cheque   of
Rs.42,000/­ drawn in favour of Accused no. 1.
4.6 It   was   further   alleged   that   they   also   informed   the
complainant that if the said cheque for Rs.42,000/­ was not sent
by the complainant, the bonus amount could not be released.
They, however, assured the complainant that the amounts so
paid   through   cheque   in   favour   of   Accused   No.   1   would   be
refunded to the complainant immediately after the verification of
her identity.  Being so influenced, the complainant through her
attorney   issued   another   cheque   of   Rs.42,000/­   in   favour   of
Accused No. 1.
4.7 It was further alleged that after a few days of issuance of the
said two cheques, the complainant received two life insurance
policies in the month of December 2013 issued by Accused no. 1,
duly signed by the Accused nos. 2 and 3 through its branch office
at Guwhati and, in both the policies, the policy holder has been
shown   as   complainant   herself,   but   in   one   policy,   the   life   of
complainant has been shown as assured, but in another policy
the life of complainant’s son Sri Samir Bajaj has been shown as
assured and the client ID of policy holder has been numbered as
6
86605617, Contract No. 51168554 dated 10.10.2013 and Client
ID No. 86948411, Contract No. 51321645 dated 28.11.2013 and
the amount of Rs.49,999.68 and Rs.41,999.89 has been shown
as first premium receipt against the said two policies and the
said amount has been collected through the bank account of
complainant by using the aforesaid two cheques by Accused no.
1.
4.8 It was then further alleged that in both the policies, Accused
no. 4 has been named as broker/agent of Accused no. 1 through
which the aforesaid two policies have been issued in the name of
the   complainant   and   in   one   policy   bearing   contract   No.
51168554, the medical report of complainant has been shown to
be enclosed therein which has been issued by the Accused no. 11
­ Sales Manager of the Reliance Life Insurance Company Ltd.
4.9 It was then further alleged that, on receipt of the said two
policies,   on   being   surprised,   the   complainant   through   her
husband made contact with the office staff of Accused no. 1 in
Tinsukia branch office and also called over the phone numbers
from which the complainant received the calls in the month of
August 2013 and November 2013 and enquired about the matter,
7
but the caller misguided the complainant by saying that the said
policies   have   been   issued   due   to   some   mistake   and   also
requested the complainant to bear with them for sometime as
they are working over the matter and assured the complainant
that she will get her amount back within a very short span of
time.
4.10 It was further alleged that, finding no other alternative, the
complainant waited for sometime and made contact with these
callers and asked them about her money but all the time the
callers assured that the work is in progress and since the matter
has been referred to their high officials for their sanction, so it
will take some time.  The complainant all the time with a hope
that the company of such a reputation will definitely return her
money, waited for the same.
4.11 It was further alleged that, subsequently, on careful perusal
of the policies, the complainant surprisingly noticed that neither
she nor her husband nor her son ever signed any proposal form
or any other documents which were required at the time of taking
the life insurance policies, as per the rules and regulations of
IRDA, nor even appeared for any medical examination before any
8
doctor or hospital authority, but the policies were issued in the
name   of   the   complainant,   moreover   the   booklet   of   policy
containing the First Premium Receipt, policy schedule, proposal
form, medical report are all Xerox copy and all the documents,
even the First Premium Receipt and policy schedule do not bear
any original signature of signatory i.e. Accused nos. 2 and 3 –
Appellants herein.
4.12 It was further alleged that, the proposal forms were shown
to   be   signed   by   the   complainant,   but   the   complainant   never
signed over the said policies and it is abundantly clear that her
signatures   are   forged   for   the   wrongful   gain   by   the   accused
persons.  It has been further revealed that the accused persons
in   conspiracy   with   each   other   forged   the   signatures   of   the
complainant, her husband and her son Sri Samir Bajaj with an
intention to deceive them for the wrongful gain.  The said policies
were issued through Accused no. 4 and all the accused persons
are related to each other and interested persons who are getting
monetary benefits for the issuance of these life insurance policies
and all the accused persons are involved in committing the crime
of   cheating,   forgery,   criminal   misappropriation   of   money   and
9
criminal conspiracy.  It is crystal clear that at the very inception
of conversation with the complainant through her husband, the
accused persons have been in conspiracy with each other and
induced the complainant to deliver the cheques with an intention
to deceive the complainant for the wrongful gain.
5. That, thereafter, the Appellants herein – original Accused
nos.   1   to   3   approached   the   High   Court   by   way   of   Criminal
Petition   No.   634   of   2014   praying   for   quashing   the   criminal
proceedings in exercise of its powers conferred under Section 482
CrPC.   That by impugned judgment and order dated 28.01.2015,
the High Court has dismissed the same and has refused to quash
the criminal proceedings.  Hence, the original Accused nos. 1 to 3
have preferred the present appeals.
6. At the time of issuance of notice on 17.04.2015, this Court
directed the Appellants to deposit a sum of Rs.3,75,000/­ to be
utilized, if necessary, for awarding costs to the Respondents ­
complainant.   It is reported that the Appellants have deposited
the same with the Registry.
10
7. Heard   learned   counsel   appearing   on   behalf   of   both   the
parties at length.   
8. During the hearing of these appeals, the learned counsel for
the Appellants agreed to pay to the original Complainant a total
sum of Rs.10,00,000 (Rupees Ten lakh only) towards the full and
final settlement of the claim of the original Complainant and it is
agreed that, on such payment, the claimant will not proceed with
the complaint any further and that the parties may be permitted
to compound the offences.
9. Learned   counsel   appearing   on   behalf   of   the   original
Complainant   has   stated   that   the   original   Complainant   is
agreeable to accept a total sum of Rs.10,00,000/­ offered and
that, on such payment, the complainant has no objection if the
offences against the Appellants are compounded and the criminal
proceedings initiated against them are quashed. 
10.   Learned   counsel   appearing   on   behalf   of   the   original
Complainant has submitted that the Appellants may deposit a
total sum of Rs.10,00,000/­ in the bank account of the original
Complainant, the particulars of which are already on record, and
11
on doing so, the Appellants may be permitted to withdraw the
amount of Rs.3,75,000/­ plus interest if any, already deposited
by them.
11. Having heard the learned counsel appearing on behalf of the
respective   parties   and   that   now   the   parties   have   settled   the
dispute amicably and that the dispute between the parties seems
to be having predominant element of a civil dispute and the
origin is predominantly or overwhelming a civil dispute, we are of
the opinion that this is a fit case to exercise the power under
Article   142   of   the   Constitution   of   India   to   meet   the   ends   of
justice.
12. We  are of the opinion  that on payment of  total sum of
Rs.10,00,000/­ by the Appellants to the original Complainant, as
agreed between the parties, the criminal proceedings be quashed,
considering the decisions of this Court in the case of Parbatbhai
Aahir v. State of Gujarat (2017) 9 SCC 641 and Gian Singh v.
State of Punjab (2012) 10 SCC 303. 
13. In view of the above and for the reasons stated above, we
allow the parties to compound the offences, even though the
12
offences alleged are non­compoundable, as the dispute between
the parties predominantly or overwhelming seems to be of a civil
nature and that the dispute is a private one and between the two
private parties.  Accordingly, it is ordered that on payment of a
sum   of   Rs.10,00,000/­   by   the   Appellants   to   the   original
Complainant to be deposited in the bank account of the original
Complainant   within   a   period   of   two   weeks,   the   criminal
proceedings being C.R. Case No. 40C of 2014 pending in the
Court of learned CJM, Tinsukia, stand quashed.   On furnishing
proof of deposit of Rs.10,00,000/­, the Registry to return the
amount   of   Rs.3,75,000/­   along   with   interest,   if   any,   to   the
Appellants herein, which the Appellants have deposited pursuant
to the earlier order of this Court.
14. The present appeals stand disposed of accordingly in terms
of the above.
……………………………………J.
(L. NAGESWARA RAO)
……………………………………J.
(M. R SHAH)
New Delhi;
February 15, 2019.

The Juvenile Justice (Care and Protection of Children) Rules, 2001, Rule 22 sub-sub-Rule (5) which is relevant for the present case is as follows: - "22(5). In every case concerning a juvenile or a child, the Board shall either obtain, - (i) a birth certificate given by a corporation or a municipal authority; (ii)a date of birth certificate from the school first attended; or (iii) matriculation or equivalent certificates, if available; and (iv) in the absence of (i) to (iii) above, the medical 15 opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, regarding his age; and, when passing orders in such case shall, after taking into consideration such evidence as may be available or the medical opinion, as the case may be, record a finding in respect of his age.”= We are of the view that the relevant Rules which were required to be looked into are the Juvenile Justice (Care and Protection of Children) Rules, 2001.The High Court had no occasion to consider the issue since the appellant has not pressed the issue before the High Court, we are of the view that it shall be appropriate that the High Court be requested to consider the question of juvenility of the appellant afresh before proceeding to decide the appeal.= remit the question of juvenility to the High Court for consideration. The High Court before deciding the appeal on merit may consider the question of juvenility on the basis of the relevant materials on record. The documents which were sought to be submitted before the High Court by the appellant be also taken on record and the High Court may reconsider the issue on the basis of materials on record as well as the report of the Sessions Judge which was sought by the High Court. The order dated 30.01.2015 passed by the High Court is set aside. The appeals are disposed of accordingly.

Hon'ble Mr. Justice Ashok Bhushan
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NOS.283-285 OF 2019
(arising out of SLP(CRL.) No.2366-2368 of 2015)
GAURAV KUMAR @ MONU ....APPELLANT(S)
VERSUS
THE STATE OF HARYANA ....RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
Leave Granted.
2. These appeals have been filed by the appellant
challenging the Order dated 30.01.2015 passed by
the Punjab & Haryana High Court dismissing three
applications as withdrawn filed in Criminal Appeal
No. 937 of 2002. Brief facts necessary to be
noticed for deciding these appeals are: -
3. The F.I.R. dated 24.05.2000 was registered
under Section 323, 506, 148, 149, 170, 171 & 302
IPC against the appellant and other accused. The
accused including the appellant were tried by
Additional Sessions Judge, Hisar in Criminal Case
1
No. 127 S.C. of 2005. The date of incident is
intervening night of 23rd/24th May, 2000, in which
incident one Sher Singh was beaten, who was taken
to the hospital and after recording of his
statement he died. The Sessions Judge vide his
judgment and order dated 12.11.2002 convicted the
appellant and one Hans Raj under Section 302 IPC
read with Section 34 IPC by Order dated 14.11.2002
and both were sentenced for life with fine of
Rs.500/-. Criminal Appeal No.937 of 2002 was filed
by the appellant against the Order of conviction
and sentence in the High Court of Punjab & Haryana.
One of the grounds taken in the appeal was that
appellant was less than 18 years of age on the date
of incident. The High Court vide Order dated
24.03.2003 while issuing notice on the application
for bail ordered that in the meanwhile a report of
the learned Sessions Judge, Hisar be called as to
whether Gaurav Kumar applicant was a Juvenile on
the date of commission of offence and on the date
of framing of charge. Learned Sessions Judge
conducted an inquiry in which oral as well as
2
3
documentary evidence was taken from both the
parties. Before the Sessions Judge the statement of
Davender s/o Hari Singh father of appellant was
also recorded who also was cross examined. On
behalf of the appellant a certificate from the
Principal of St. Kabir School, Hisar was submitted
wherein date of birth of Gaurav was recorded as
17.08.1982. A mark sheet issued by National Open
School, New Delhi of Secondary School Examination
of Gaurav Ghatarwal was also submitted wherein date
of birth was recorded as 17.08.1982. The State
submitted Birth Certificate exhibit R-1 issued by
the Registrar (Birth & Death) (Municipal Council,
Haansi) where date of birth of son of Devender and
Indu is recorded as 17.08.1981. The District &
Sessions Judge, Hisar after considering the
materials received in the inquiry including the
oral evidence of father of the appellant held that
date of birth of the appellant is 17.08.1981,
hence, on the night intervening 23rd/24th May 2000,
the applicant-appellant Gaurav Kumar was more than
18 years of age. The report was submitted to the
4
High Court. Criminal Misc. Application No.20593 of
2014 was filed by the appellant under Section 391
read with Section 482 Cr.P.C. for placing on record
the secondary/matriculation certificate of National
Open School, Government of India New Delhi dated
23.05.2000, migration certificate of National Open
School Government of India New Delhi dated
01.08.1999 and identity card of the appellant
issued by the National Open University as
additional evidence for taking the plea of
applicant-appellant being juvenile on the date of
the incident 24.05.2000. Another Criminal
Application No. 3118 of 2015 in Criminal Misc.
Application No.26949 of 2014 for placing on record
additional affidavit of the appellant and also for
placing on record true copy of Ration Card and for
exemption from filing certified copy of Annexure A10. Criminal Application No. 20593 of 2014 came for
consideration before the High Court on 30.01.2015.
The High Court noticed the report dated
08/09.05.2003 sent from District and Sessions
Judge, Hisar holding that Gaurav Kumar applicant
5
was more than 18 years of age on the date of
commission of offence. The High Court took into the
consideration the birth certificate issued by
Registrar (Birth & Death), Haansi where date of
birth of appellant son of Davender and Indu was
recorded as 17.08.1981. In view of the report of
District and Sessions Judge, Learned Counsel for
the applicant-appellant submitted before the High
Court that he does not press the applications. The
applications, thus, were dismissed as withdrawn.
4. In view of Order passed in Application No.
20593 of 2014 learned counsel for applicantappellant did not press other criminal
miscellaneous applications which were also
dismissed as withdrawn by Order dated 30.01.2015.
5. These appeals have been filed by appellant
against the order dated 30.01.2015 of the High
Court by which order the applications filed by the
applicant-appellant were dismissed as withdrawn.
6. Shri Neeraj Jain, learned senior Advocate
appearing for the appellant submits that appellant
has right to raise the issue of juvenility at any
6
stage, hence, even if his applications for
submitting additional evidence in support of his
case of juvenility, has been dismissed as
withdrawn, he still can raise the issue in this
Court in the present appeal. He further submits
that the certificate filed from Sant Kabir School,
Hisar was a relevant certificate which ought to
have been relied by District Judge in his report.
He submits that learned Sessions Judge erred in
relying on birth certificate in which son has been
born to Davender on 17.08.1981 has been recorded.
7. Learned Counsel for the appellant has placed
reliance on Rule 12 of Juvenile Justice (Care and
Protection of Children) Rules, 2007. He submits
that Rule 12 deals with the procedure to be
followed in determination of age. He submits that
by virtue of Rule 12(3) the date of birth
certificate from the school first attended was to
be preferred than the birth certificate given by
Corporation or Municipal Authority, or a Panchayat.
He submits that school certificate relied by
appellant was to be preferred by statutory
7
provisions, hence, the report of District Judge
relying on birth certificate given by Corporation
was erroneous. In support of his submission he has
placed reliance on judgment of this Court in
2011(13) SCC 751, Shah Nawaz versus State of Uttar
Pradesh and another, and Judgment of this Court in
2012(10) SCC 489, Abuzar Hossain alias Gulam
Hossain versus State of West Bengal.
8. Learned counsel appearing for the State has
refuted the submission of the appellant and submits
that District & Sessions Judge has after due
inquiry held that appellant was not Juvenile on the
date of occurrence. He submits that no error has
been committed by District & Sessions Judge on
relying on the birth certificate issued by
Registrar (Birth & Death). He submits that the
certificates which were sought to be submitted in
the additional evidence were not pressed before the
High Court. The appellant himself having withdrawn
his applications for filing additional evidence has
virtually accepted the report of District and
Sessions Judge and cannot be allowed to challenge
8
the same in this Court.
9. We have considered the submissions of learned
counsel to the parties and perused the record.
10. Even though applicant-appellant has withdrawn
his application filed in the High Court for placing
certain additional evidence to question the report
submitted by District and Sessions Judge, we
proceed to examine the submissions raised by
learned counsel for the appellant on merits. The
main thrust of the submission of learned counsel of
the appellant is based on Rule 12 of 2007 Rules.
Rule 12(3) on which reliance is placed is as
follows: -
"12. Procedure to be followed in
determination of age. -
(3) In every case concerning a
child or juvenile in conflict with
law, the age determination inquiry
shall be conducted by the Court or
the Board or, as the case may be,
the Committee by seeking evidence
by obtaining-
(a) (i) the matriculation or
equivalent certificates,
if available; and in the
absence whereof;
(ii) the date of birth
certificate from the
school (other than a play
9
school) first attended;
and in the absence
whereof;
(iii) the birth
certificate given by a
corporation or a municipal
authority or a panchayat;
(b) and only in the absence of
either(i), (ii) or (iii) of
clause (a) above, the medical
opinion will be sought from a
duly constituted Medical
Board, which will declare the
age of the juvenile or child.
In case exact assessment of
the age cannot be done, the
Court or the Board or, as the
case may be, the Committee,
for the reasons to be
recorded by them, may, if
considered necessary, give
benefit to the child or
juvenile by considering
his/her age on lower side
within the margin of one year.
and, while passing orders in such
case shall, after taking into
consideration such evidence as may
be available, or the medical
opinion, as the case may be,
record a finding in respect of his
age and either of the evidence
specified in any of the clauses
(a)(i), (ii), (iii) or in the
absence whereof, clause(b) shall
be the conclusive proof of the age
as regards such child or the
juvenile in conflict with law.”
10
11. This Court in Shah Nawaz case had considered
Rule 12 of 2007 Rules and has held that preference
has been given to the school certificate over the
medical report. In paragraph 26, following has been
laid down: -
"26. We are also satisfied that
Rule 12 which was brought in
pursuance of the Act describes
four categories of evidence which
have been provided in which
preference has been given to
school certificate over the
medical report.”
12. A Three-Judge Bench in Abuzar Hossain (Supra)
while considering Rule 12 laid down following: -
"39.3.As to what materials would
prima facie satisfy the court
and/or are sufficient for
discharging the initial burden
cannot be catalogued nor can it be
laid down as to what weight should
be given to specific piece of
evidence which may be sufficient
to raise presumption of juvenility
but the documents referred to in
Rules 12(3)(a)(i) to (iii) shall
definitely be sufficient for prima
facie satisfaction of the court
about the age of the delinquent
necessitating further enquiry
under Rule 12. The statement
11
recorded under Section 313 of the
Code is too tentative and may not
by itself be sufficient ordinarily
to justify or reject the claim of
juvenility. The credibility and/or
acceptability of the documents
like the school leaving
certificate or the voters' list,
etc. obtained after conviction
would depend on the facts and
circumstances of each case and no
hard-and-fast rule can be
prescribed that they must be prima
facie accepted or rejected. In
Akbar Sheikh and Pawan these
documents were not found prima
facie credible while in Jitendra
Singh the documents viz. School
leaving certificate, marksheet and
the medical report were treated
sufficient for directing an
inquiry and verification of the
appellant's age. If such documents
prima facie inspire confidence of
the court, the court may act upon
such documents for the purposes of
Section 7-A and order an enquiry
for determination of the age of
the appellant.”
13. In his concurring opinion Justice T.S.Thakur
while elaborating Rule 12 laid down following:-
"43.2. The second factor which
must ever remain present in the
mind of the Court is that the
claim of juvenility may at times
be made even in cases where the
accused does not have any evidence
showing his date of birth by
reference to any public document
12
like the Register of Births and
Deaths maintained by the municipal
authorities, panchayats or
hospitals nor any certificate from
any school, as the accused was
never admitted to any school. Even
if admitted to a school no record
regarding such admission may at
times be available for production
in the court. Again, there may be
cases in which the accused may not
be in a position to provide a
birth certificate from the
corporation, the municipality or
the panchayat, for we know that
the registration of births and
deaths may not be maintained and
if maintained may not be regular
and accurate, and at times
truthful.
44. Rule 12(3) of the Rules makes
only three certificates relevant.
These are enumerated in sub-rules
3(a)(i) to (iii of the Rule which
reads as under:-
“(3)(a)(i) the matriculation
or equivalent certificates, if
available; and in the absence
whereof;
(ii) the date of birth
certificate from the school (other
than a play school) first
attended; and in the absence
whereof;
(iii) the birth certificate
given by a corporation or a
municipal authority or a
panchayat;”
13
Non-production of the above
certificates or any one of them is
not, however, fataal to the claim
of juvenility, for sub-rule(3)(b)
to Rule 12 makes a provision for
determination of the question on
the basis of the medical
examination of the accused in the
“absence” of the certificates.”
14. The submission of learned counsel for the
appellant was that school certificate filed by him
with date of birth 17.08.1982 was not even
challenged, hence, on the strength of Rule 12 the
said certificate ought to have been accepted by the
learned Sessions Judge.
15. The submissions raised by learned counsel for
appellant based on Rule 12(3) of 2007 Rules could
have been considered by us in detail but we notice
that in the present case, there is no applicability
of Rule 12 of 2007 Rules. The date of occurrence in
the present case is 23/24.05.2000 on which date
Rule 2007 were not enforced. Even on the date when
learned District and Sessions Judge submitted his
report 08.05.2003 after holding inquiry, Rule 2007
was not in force. Rule 100 of 2007 Rules repealed
14
the earlier Rule of Juvenile Justice (Care and
Protection of Children) Rules, 2001. Rule 100 of
2007 Rules is as follows: -
"100. Repeal. - The Juvenile
Justice (Care and Protection of
Children) Rules, 2001, notified
vide F.No.1-3/2001-SD, dated the
22nd June, 2001 in the Gazette of
India, Extraordinary, Part I,
Section 1 of the same date is
hereby repealed.”
16. Thus, the relevant Rule occupying the field in
the present case were 2001 Rules. Rule 22 of 2001
Rules dealt with “procedure to followed by a board
in the holding inquiry in the determination of
age.” Rule 22 sub-sub-Rule (5) which is relevant
for the present case is as follows: -
"22(5). In every case concerning a
juvenile or a child, the Board
shall either obtain, -
(i) a birth certificate given by a
corporation or a municipal
authority;
(ii)a date of birth certificate
from the school first
attended; or
(iii) matriculation or equivalent
certificates, if available;
and
(iv) in the absence of (i) to
(iii) above, the medical
15
opinion by a duly constituted
Medical Board, subject to a
margin of one year, in
deserving cases for the
reasons to be recorded by such
Medical Board,
regarding his age; and, when
passing orders in such case shall,
after taking into consideration
such evidence as may be available
or the medical opinion, as the
case may be, record a finding in
respect of his age.”
17. We are of the view that the relevant Rules
which were required to be looked into are the
Juvenile Justice (Care and Protection of Children)
Rules, 2001.
18. The High Court had no occasion to consider the
issue since the appellant has not pressed the
issue before the High Court, we are of the view
that it shall be appropriate that the High Court
be requested to consider the question of
juvenility of the appellant afresh before
proceeding to decide the appeal.
19. The interest of justice be served by setting
aside the order dated 30.01.2015 passed by the
16
Punjab and Haryana High Court and remit the
question of juvenility to the High Court for
consideration. The High Court before deciding the
appeal on merit may consider the question of
juvenility on the basis of the relevant materials
on record. The documents which were sought to be
submitted before the High Court by the appellant
be also taken on record and the High Court may
reconsider the issue on the basis of materials on
record as well as the report of the Sessions Judge
which was sought by the High Court. The order
dated 30.01.2015 passed by the High Court is set
aside. The appeals are disposed of accordingly.
...............................J.
( ASHOK BHUSHAN )
...............................J.
( K.M.JOSEPH)
NEW DELHI,
FEBRUARY 15, 2019.

Application u/S. 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “1996 Act”) for appointment of an independent arbitrator to adjudicate 1 the disputes that had arisen between the Petitioner and Respondent No. 2. =The arbitration clause in the 2007 Scheme clearly states that : “All disputes arising out of this scheme or in relation thereto in any form whatsoever shall be dealt exclusively by way of arbitration in terms of the Arbitration and Conciliation Act, 1996.” (emphasis supplied) Russell in his commentary on arbitration11 has interpreted these words as follows : “Disputes “in connection with”, “in relation to”, or “regarding” a contract. These words, which are frequently encountered and are to be given the same meaning, were at one time given a restricted interpretation, but are now well established as having a broad meaning…..They may also be sufficient to catch disputes arising under another contract related to the contract containing the arbitration clause.” this Court observed that expressions such as – “pertaining to”, “in relation to” and “arising out of”, are used in the expansive sense, and must be construed accordingly.The words “in relation thereto” used in Clause 11.12 of the 2007 Scheme indicate that the clause would apply to all transactions which took place under the 2007 Scheme. This would include the sale transactions in the present case. In view of the above discussion, the view taken by the learned Single Judge is erroneous, and is hereby set­aside. The appeal is allowed. At the conclusion of the hearing, the parties consensually agreed to appoint Mr. Justice Pranab Kumar Chattopadhyay (Retired Judge of the Calcutta High Court; Address: P­29/3, Jotish Roy Road, Kolkata – 700053) as Sole Arbitrator to adjudicate the disputes which have arisen between the Appellant and Respondent No. 2, under the 2007 Scheme. The appointment of Mr. Justice Chattopadhyay will be subject to the disclosure and declaration made, as per the Sixth Schedule to the Arbitration and Conciliation Act, 1996 (as amended by the 2015 Amendment Act). The proceedings will be conducted in Kolkata. Ordered accordingly.

Hon'ble Ms. Justice Indu Malhotra 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1695  OF 2019
(Arising out of SLP (Civil) No. 28693 of 2018)
Giriraj Garg   …Appellant
Versus
Coal India Ltd. & Ors.      …Respondents
J U D G M E N T
INDU MALHOTRA, J.
Leave granted.
1. The present Civil Appeal arises out of an Order dated
21/18.05.2018 passed by a learned Single Judge of the
Jharkhand   High   Court   at   Ranchi,   in   Arbitration
Application   No.   11   of   2016.   The   Appellant   filed   an
Application u/S. 11(6) of the Arbitration and Conciliation
Act, 1996 (hereinafter referred to as the “1996 Act”) for
appointment of an independent arbitrator to adjudicate
1
the disputes that had arisen between the Petitioner and
Respondent No. 2.
2. The factual matrix of the present case, briefly stated, is
as under:
2.1. Respondent   No.   1   issued   the   2007   Scheme,
whereby coal distribution would be conducted through
e­Auction, with a view to provide access to coal for
buyers, who were not able to source coal through the
available institutional mechanism. This system would
provide an equal opportunity to purchase coal through
a single­window service to all intending buyers, and
facilitate country wide access to booking coal online
for   all   sections   of   coal   buyers,   through   a   simple,
transparent system.
Clause 11.12 of the 2007 Scheme contains an
arbitration clause which reads as under ­
“11.12         In   the   event   of   any   dispute,
Bidder/Buyer   is   necessarily   required   to
represent in writing to the General Manager
(Sales and Marketing) of the concerned Coal
Company, who would deal with the same in a
period of 1 month from such representation.
Thereafter,   if   required   the   matter   be
determined   by   the   Director­In   Charge   of
Marketing   of   the   concerned   Coal   Company.
Any   interpretation   of   this   Clause   will   be
subject to clarification by CIL, which will be
deemed as firm and final. All disputes arising
2
out of this scheme or in relation thereto in any
form whatsoever shall be dealt exclusively by
way of arbitration in terms of the Arbitration
and   Conciliation   Act,   1996.  The   arbitration
shall be conducted at Kolkata at a place to be
notified   by   CIL.   The   arbitrator   shall   be
appointed   by   the   Chairman   and   Managing
Director,   CIL   upon   written   request   in   this
behalf. The award rendered by the arbitrator
shall be final and binding on the parties. (The
place   of   arbitration   and   nomination   of
arbitrator be varied appropriately in view of
the Coal Company involved).
(emphasis supplied)
2.2. From   2012   to   2015,   the   Appellant,   being   a
registered buyer as per the Terms and Conditions of
the 2007 Scheme, participated in the e­Auction for
purchase of coal for several sale orders issued under
the 2007 Scheme.
2.3. The   Appellant   was   declared   successful   with
respect to various coal orders. Sale orders were issued
in   favour   of   the   Appellant,   pursuant   to   which   he
deposited   the   Earnest   Money   Deposit   (hereinafter
referred to as “EDM”) and the coal value as per Clause
2.5 and 5.2 of the 2007 Scheme respectively.
2.4. As per Clause 7.2 of the 2007 Scheme, a period of
45 days was allowed to the Appellant from the date of
issue   of   the   delivery   order,   to   lift   the   coal.   The
3
Appellant for certain reasons was unable to lift the
booked quantity of coal.
2.5. Respondent No. 1 considered this to be a breach
of the Terms and Conditions of the 2007 Scheme, and
forfeited the EMD deposited by the Appellant under
Clause 9.2 of the 2007 Scheme.
2.6. As a consequence, disputes arose  between the
parties.   The   Appellant   served   a   Notice   dated
21.03.2016   invoking   the   arbitration   Clause   11.12
under the 2007 Scheme.
The Respondents failed to appoint an arbitrator
as per Clause 11.12 of the 2007 Scheme.
2.7.   The Appellant was therefore constrained to file
an Application u/S. 11 before the Jharkhand High
Court at Ranchi, for appointment of an independent
arbitrator.
2.8. The learned Single Judge  vide  impugned Order
dated 21/18.05.2018 rejected the Application on the
ground   that   the   disputes   relate   to   different
transactions entered into between the parties, under
the 2007 Scheme. The sale orders did not contain an
arbitration clause. It was held that even though the
2007 Scheme contains an arbitration clause, none of
4
the   individual   sale   orders   make   reference   to   the
applicability   of   terms   and   conditions   of   the   2007
Scheme   to   the   sale   orders.   Hence,   the   arbitration
clause could not be incorporated by reference.
3. Aggrieved by the aforesaid Order, the Appellant has filed
the present Appeal.
We   have   heard   learned   Counsels   Dr.   Kedar   Nath
Tripathy, Mr. B. B. Pradhan, Mr. Susanta Kr. Muduti,
and Mr. M. A. Aleem Majid for the Appellants and Mr.
Anupam Lal Das, Mr. Anirudh Singh and Mr. Krishanu
Barua for the Respondents and perused the documents
on record.
3.1.  A copy of a Sale Order issued by Respondent No.
2 was brought to our notice, which contains Standard
Terms and Conditions at the end. Clause 7 of the
Terms and Conditions state that the sale orders would
be governed by the Guidelines, Circulars, Notices, and
Instructions issued by Coal India Ltd., Bharat Coking
Coal Ltd. etc.
Clause 7 is set out hereinbelow for ready reference ­
“7.  The   sale   order   will   be   governed   by
guidelines   –   circulars   –   office   orders   –
notices   –   instructions,   relevant   law   etc.
issued   from   time   to   time   by   Coal   India
Ltd.,   Bharat   Coking   Coal   Ltd.,   State
Govts., Central Govt. and other statutory
5
bodies.  This is also subject to any future
escalation   in   prices   and   or   levies/or
duties­taxes etc. which may be imposed
from time to time.”
(emphasis supplied)
4. The   short   question   before   this   Court   is   whether   the
arbitration clause contained in the 2007 Scheme, would
stand   incorporated   by   reference   in   each   of   the   sale
orders.
4.1. The principle of incorporation by reference of an
arbitration clause, from another document or contract
is  a  well­established  principle  in   arbitration
jurisprudence.1
  This principle has been followed by
the   courts   in   India,   and   has   been   given   statutory
recognition in sub­section (5) of Section 7 of the 1996
Act.
4.2. Section 7(5) states that the reference in a contract
to   a   document   containing   an   arbitration   clause,
constitutes   a   valid   arbitration   agreement,   if   the
contract is in writing, and the reference is specifically
made to incorporate the arbitration clause as a part of
the contract.
1 Clements  v.  Devon Country Insurance Committee, [1918] 1 KB 94;
Macleod Ross and  Co. Ltd.  v.  Compagnie d’ Assurances  Generales
L’Helvetia of St Gall, [1952] 1 All ER 331, 334 : [1952] 1 Lloyd’s Rep 12
(CA).
6
4.3. The arbitration agreement need not necessarily
be in the form of a clause in the substantive contract
itself.   It   could   be   an   independent  agreement;   or   it
could   be   incorporated   by   reference   either   from   a
parent agreement, or by reference to a standard form
contract.
4.4. Section 7(5) of the 1996 Act, closely replicates
Article 7(2)2
  of the UNCITRAL Model Law as it stood
prior to the 2006 amendment. Dr Peter Binder in his
Commentary   titled   “International   Commercial
Arbitration   and   Conciliation   in   UCITRAL   Model   Law
2 Art. 7. Definition and form of arbitration agreement.—
(1) ‘Arbitration agreement’ is an agreement by the parties to
submit to arbitration all or certain disputes which have arisen or
which   may   arise   between   them   in   respect   of   a   defined   legal
relationship, whether contractual or not. An arbitration agreement
may be in the form of an arbitration clause in a contract or in the
form of a separate agreement.
(2) The arbitration agreement shall be in writing. An agreement
is in writing if it is contained in a document signed by the parties or
in   an   exchange   of   letters,   telex,   telegrams   or   other   means   of
telecommunication which provide a record of the agreement, or in an
exchange of statements of claim and defence in which the existence
of an agreement is alleged by one party and not denied by another.
The reference in a contract to a document containing an arbitration
clause   constitutes   an   arbitration   agreement   provided   that   the
contract is in writing and the reference is such as to make that
clause part of the contract.
7
Jurisdictions” 3 has interpreted Article 7(2) to include
incorporation by reference in the following words:
“(d)   Reference   to   a   document   containing   an
arbitration clause
The  third  sentence of  art. 7(2) is  concerned
with   a   contract   containing   a   reference   to   a
document that contains an arbitration clause.
Provided that the main contract is in “writing”
and that the reference “is such as to make
that   clause   part   of   the   contract”,   the
arbitration agreement is valid. The necessity
of including this provision arose from problems
and divergent court decisions on this issue in
the context of the New York Convention.  The
travaux   explain   that   it   is   sufficient   if   the
reference only refers to the document; specific
mention of the arbitration clause therein is not
necessary.”
(emphasis supplied)
4.5. Section 6(2) of the English Arbitration Act, 1996
is  pari materia to  Section 7(5) of the  1996  Act, and
reads as under:
“6. Definition of arbitration agreement.
(1)…..
(2) The reference in an agreement to a written
form of arbitration Clause or to a document
containing   an   arbitration   Clause   constitutes
an   arbitration   agreement   if   the   reference   is
such   as   to   make   that   Clause   part   of   the
agreement.”
3 Dr.   Peter   Binder,  International   Commercial   Arbitration   and
Conciliation in UNCITRAL Model Law Jurisdictions, (3rd  Edn., 2010,
Sweet & Maxwell) pg. 86, para 2­022
8
The Queen's Bench Division, Commercial Court
in  Sea Trade Maritime Corporation  v.  Hellenic Mutual
War Risks Association (Bermuda) Limited, The Athena4
held   that   the   general   words   of   incorporation  of   a
standard form contract were enough to incorporate an
arbitration clause.
4.6. The question of incorporation of  an  arbitration
Clause from an earlier contract by general reference
into a later contract, came up for consideration before
the Queen's Bench Division in  Habas Sinai Ve Tibbi
Gazlar Isthisal Endustri AS  v.  Sometal SAL5
. In  this
case, the Court followed the judgment in the case of
Sea Trade Maritime Corporation (supra), and held that
a   general   reference  to   a   contract   containing   an
arbitration clause is sufficient for incorporation from a
standard form of contract. The Court recognized  the
following   broad   categories   in   which   the   parties
attempt to incorporate an arbitration clause:
“  (1) A and B make a contract in which they
incorporate standard terms. These may be the
standard terms of one party set out on the
back of an offer letter or an order, or contained
4 [2006] EWHC 2530 (Comm)
5 [2010] EWHC 29 (Comm)
9
in   another   document   to   which   reference   is
made; or terms embodied in the Rules of an
organization   of   which   A   or   B   or   both   are
members; or they may be terms standard in a
particular trade or industry.
(2)   A   and   B   make   a   contract   incorporating
terms previously agreed between A and B in
another   contract   or   contracts   to   which   they
were both parties
(3)   A   and   B   make   a   contract   incorporating
terms   agreed   between   A   (or   B)   and   C.
Common   examples   are   a   bill   of   lading
incorporating the terms of a charter to which A
is a party; reinsurance contracts incorporating
the terms of an underlying insurance; excess
insurance contracts incorporating the terms of
the primary layer of insurance; and building or
engineering   sub   contracts   incorporating   the
terms of a main contract or sub­sub contracts
incorporating the terms of a sub contract.
(4)   A   and   B   make   a   contract   incorporating
terms agreed between C and D. Bills of lading,
reinsurance   and   insurance   contracts   and
building contracts may fall into this category. ”
In Habas (supra) a distinction was made between
a ‘single contract case’ and a ‘two­contract case’. A
‘single   contract   case’   is   one   where   the   arbitration
clause is contained in a standard form contract to
which   there   is   a   general   reference   in   the   contract
between the parties. On the other hand, where the
arbitration clause is contained in an earlier contract/
some   other   contract,   and   a   reference   is   made   to
10
incorporate it in the contract between the parties, it is
a   ‘two­contract   case’.   The   Court   held   that
incorporation by general reference in a single contract
case is valid. However, in a ‘two­contract case’, where
reference   is   made   to   an   arbitration   clause   in   a
separate contract, the reference must be specific to
the arbitration clause. The judgment in Habas (supra)
has   recently   been   affirmed   by   the   Queen’s   Bench
Division in SEA2011 Inc. v. ICT Ltd.6
4.7. Russell  in  his  commentary  on   arbitration7
  has
commented on the single and two contract cases, and
reference   to   standard   form   terms,   in   the   following
passage, which is instructive :
“  Reference   to   standard   form   terms,
single   and   two­contract   cases.  If   the
document   sought   to   be   incorporated   is   a
standard form set of terms and conditions the
courts are more likely to accept that general
words   of   incorporation   will   suffice.   This   is
because   the   parties   can   be   expected   to   be
more   familiar   with   those   standard   terms,
including the arbitration clause. In Sea Trade
Maritime Corporation v. Hellenic Mutual War
Risks   Association   (Bermuda)   Ltd.,   (The
"Athena") No. 2 the Court drew a distinction
between what is described as a "two contract
case", that is where the arbitration Clause is
contained in a secondary document which is a
contract to which at least one party is different
6 [2018] EWHC 520 (Comm)
7 Russell on Arbitration (24th Edn. ,2015, Sweet & Maxwell) pp. 52 –
54, para 2­049
11
from the parties to the contract in question,
and   "a   single   contract   case"   where   the
arbitration Clause is in standard terms to be
found in another document. Relying on dictum
of Bingham LJ in Federal Bulk Carries Inc v.
C.   Itoh   &   Co.   Ltd.   (The   "Federal   Bulker"),
Langley J stated that:
"In principle, English law accepts incorporation
of standard terms by the use of general words
and, I would add, particularly so when the
terms are readily available and the question
arises   in   the   context   of   dealings   between
established players in a well­known market.
The principle, as the dictum makes clear, does
not distinguish between a term which is an
arbitration Clause and one which addresses
other   issues.   In   contrast,   and   for   the   very
reason   that   it   concerns   other   parties,   a
"stricter rule" is applied in charterparty/bills of
lading   cases.   The   reason   given   is   that   the
other party may have no knowledge nor ready
means   of   knowledge   of   the   relevant   terms.
Further, as the authorities illustrate, the terms
of   an   arbitration   Clause   may   require
adjustment if they are to be made to apply to
the parties to a different contract."
The Court therefore reinforced the distinction
between   incorporation   by   reference   of
standard form terms and of the terms of a
different   contract,   and   concluded   that   in   a
single   contract   case   general   words   of
incorporation   are   sufficient,   whereas   by   its
nature   a   two   contract   case   may   require
specific reference to the other contract, unless
the secondary document is stated to be based
on   standard   form   terms   containing   an
arbitration   agreement.   In   that   case,
presumably   specific   reference   to   the
arbitration Clause would not be needed. As
discussed   below,   this   approach   has   been
endorsed in subsequent cases, albeit drawing
a   slightly   different   but   "material"   distinction
between   incorporation   of   the   terms   of   a
separate   contract   ­   standard   or   otherwise   ­
12
made   between   the   same   parties   which   are
treated as "single contract" cases, even where
there is in fact more than one contract; and
those where the terms to be incorporated are
contained in a contract between one or more
different parties which are treated as the "two
contract" cases.
Extension   of   the   single   contract   cases.
Recently, the courts appear to have extended
the   "single   contract"   principle   applicable   to
standard form contracts, where general words
of incorporation will suffice, to other types of
contract where the same rationale can be said
to apply.  Thus, if the document sought to be
incorporated   is   a   bespoke   contract   between
the   same   parties,   the   courts   have   accepted
this as a "single contract" case where general
words   of   incorporation   will   suffice,   even
though the other contract is not on standard
terms   and   constitutes   an   entirely   separate
agreement.  The rationale for this approach is
that  the parties have already contracted on
the   terms   said   to   be   incorporated   and   are
therefore even more likely to be familiar with
the   term   relied   on   than   a   party   resisting
incorporation of a standard term. Put another
way,   if   general   words   of   incorporation   are
sufficient for the latter, they should be even
more so for the former. The courts also appear
to have accepted as a "single contract" case a
situation   where   the   contract   referred   to   is
between   one   of   the   parties   to   the   original
contract and a third party, where the contracts
as a whole "were entered into in the context of
a single commercial relationship.”
(emphasis supplied)
4.8. An   early  case  in   Indian   arbitration  on  the
doctrine   of  incorporation   by   reference  under   the
Arbitration Act, 1940 (hereinafter referred to as the
“1940 Act”), was Alimenta SA  v.  National Agriculture
13
Co­op Marketing Federation of India Ltd.8 Though there
was no specific provision on an arbitration agreement
being   based   on   the   doctrine   of   incorporation   by
reference in the 1940 Act, this Court recognized it to
be applicable in Indian law.  In this case, this Court
held that the arbitration clause of an earlier contract
could   be   incorporated   by   reference   into   a   later
contract,   provided   it   is   not   repugnant   to,   or
inconsistent with the terms of the contract in which it
is incorporated.
4.9. In the 1996 Act, the doctrine of incorporation by
reference is provided in the statue itself under Section
7(5) of the Act. In  M.R. Engineers & Contractors Pvt.
Ltd.  v.  Som Datt Builders Ltd.,
9
  this  Court held that
even though  a  contract between the parties did not
contain   a   provision   for   arbitration,   an   arbitration
clause contained in an independent document would
be incorporated into the contract by reference, if the
reference is such as to make the arbitration clause a
8 (1987) 1 SCC 615 : AIR 1987 SC 643 : 84 (2000) DLT 494.
9 (2009) 7 SCC 696 : 2009 (3) Arb LR 1 (SC) : 2009 (9) SCALE 298.
14
part of the contract. The court explained the doctrine
of incorporation in the following words –
“24. The scope and intent of Section 7(5) may
therefore be summarised thus:
(i) An arbitration clause in another document,
would   get   incorporated   into   a   contract   by
reference,   if   the   following   conditions   are
fulfilled :
(1)   The   contract   should   contain   a   clear
reference   to   the   documents   containing
arbitration clause,
(2) the reference to the other document should
clearly indicate an intention to incorporate the
arbitration clause into the contract,
(3)   The   arbitration   clause   should   be
appropriate, that is capable of application in
respect   of   disputes   under   the   contract   and
should not be repugnant to any term of the
contract.
(ii)   When   the   parties   enter   into   a   contract,
making   a   general   reference   to   another
contract,   such   general   reference   would   not
have the effect of incorporating the arbitration
clause   from   the   referred   document   into   the
contract between the parties. The arbitration
clause   from   another   contract   can   be
incorporated   into   the   contract   (where   such
reference is made), only by a specific reference
to arbitration clause.
(iii)   Where   a   contract   between   the   parties
provides that the execution or performance of
that   contract   shall   be   in   terms   of   another
contract   (which   contains   the   terms   and
conditions   relating   to   performance   and   a
provision   for   settlement   of   disputes   by
arbitration),   then,   the   terms   of   the   referred
contract   in   regard   to   execution/performance
alone   will   apply,   and   not   the   arbitration
agreement   in   the   referred   contract,   unless
there   is   special   reference   to   the   arbitration
clause also.
15
(iv)   Where   the   contract   provides   that   the
standard form of terms and conditions of an
independent Trade or Professional Institution
(as   for   example   the   Standard   Terms   &
Conditions of a Trade Association or Architects
Association)   will   bind   them   or   apply   to   the
    contract,   such standard   form   of   terms   and
conditions   including   any   provision   for
arbitration   in   such   standard   terms   and
conditions, shall be deemed to be incorporated
by reference. Sometimes the contract may also
say that the parties are familiar with those
terms and conditions or that the parties have
read   and   understood   the   said   terms   and
conditions.
(v)  Where   the   contract   between   the   parties
stipulates that the Conditions of Contract of
one of the parties to the contract shall form a
part   of   their   contract   (as   for   example   the
General   Conditions   of   Contract   of   the
Government where Government is a party), the
arbitration clause forming part of such General
Conditions   of   contract   will   apply   to   the
contract between the parties.”
(emphasis supplied)
4.10. This   Court   in  Inox   Wind   Ltd.  v.  Thermocables
Ltd.10 while   adopting  the   ‘single  contract   case’   and
‘two­contract   case’   principle   laid   down   by  Habas
(supra), held that a general reference to a consensual
standard   form   is   sufficient   for   incorporation   of   an
arbitration clause. In other words, general reference to
a   standard   form   contract   of   one   party,   would   be
sufficient for incorporation of the arbitration clause. In
10 (2018) 2 SCC 519
16
this case, the Court expanded the application of this
doctrine by holding that even a general reference to a
standard form contract of one party, along with those
of trade associations, and professional bodies would
be sufficient to incorporate the arbitration clause.
5. In   the   instant   case,   the   learned   Single   Judge   in   the
impugned Order has erroneously taken the view that an
arbitration clause would not stand incorporated in the
individual sale orders entered into by the Respondent No.
2 – Coal Company and the Appellant. The individual sale
orders emanate out of the 2007 Scheme. The sale orders
specifically   state   that   they   would   be   governed   by   the
guidelines, circulars, office orders, notices, instructions,
relevant law etc. issued from time to time by Coal India
Limited   or   Bharat   Coking   Coal   Limited   etc.   As   a
consequence, the arbitration clause (i.e. Clause 11.12) in
the 2007 Scheme would stand incorporated in the sale
orders issued thereunder.
Clause   7   in   the   sale   orders   falls   under   the   ‘single
contract case’  where the arbitration clause is contained
in a standard form document  i.e.  the 2007 Scheme, to
17
which there is a reference in the individual sale orders
issued by Respondent No. 2 – the Coal Company.
5.1. The arbitration clause in the 2007 Scheme clearly
states that :
“All disputes  arising out of this scheme or in
relation thereto in any form whatsoever shall
be dealt exclusively by way of arbitration in
terms of the Arbitration and Conciliation Act,
1996.”
(emphasis supplied)
Russell   in   his   commentary   on   arbitration11  has
interpreted these words as follows :
“Disputes   “in   connection   with”,   “in
relation   to”,   or   “regarding”   a   contract.
These   words,   which   are   frequently
encountered   and   are   to   be   given   the   same
meaning, were at one time given a restricted
interpretation, but are now well established as
having a broad meaning…..They may also be
sufficient   to   catch   disputes   arising   under
another   contract   related   to   the   contract
containing the arbitration clause.”
(emphasis supplied)
In  Renusagar   Power   Co.   Ltd.  v.  General   Electric
Company   and   Anr.,12  this   Court   observed   that
expressions such as “arising out of”, or “in respect of”, or
“in connection with”, or “in relation to”, the contract are
of the widest amplitude, and content.
11 Russell on Arbitration (24th Edn. ,2015, Sweet & Maxwell) pg. 82,
para 2­103
12 [1985]1SCR432
18
In  Doypack Systems Pvt. Ltd.  v.  Union of India and
Ors.,
13  this Court observed that expressions such as –
“pertaining to”, “in relation to” and “arising out of”, are
used   in   the   expansive   sense,   and   must   be   construed
accordingly.
The words “in relation thereto” used in Clause 11.12 of
the 2007 Scheme indicate that the clause would apply to
all   transactions   which   took   place   under   the   2007
Scheme. This would include the sale transactions in the
present case.
5.2. In view of the above discussion, the view taken by
the learned Single Judge is erroneous, and is hereby
set­aside. The appeal is allowed.
6. At the conclusion of the hearing, the parties consensually
agreed   to   appoint   Mr.   Justice   Pranab   Kumar
Chattopadhyay   (Retired   Judge   of   the   Calcutta   High
Court;   Address:   P­29/3,   Jotish   Roy   Road,   Kolkata   –
700053)   as   Sole   Arbitrator   to   adjudicate   the   disputes
which have arisen between the Appellant and Respondent
No. 2, under the 2007 Scheme.
13 1988 (36) ELT 201 (SC)
19
The appointment of Mr. Justice Chattopadhyay will be
subject to the disclosure and declaration made, as per the
Sixth Schedule to the Arbitration and Conciliation Act, 1996
(as amended by the 2015 Amendment Act).
The proceedings will be conducted in Kolkata.
Ordered accordingly.
.…..........................J.
(UDAY UMESH LALIT)
…...……………………J.
(INDU MALHOTRA)
New Delhi,
February 15, 2019.
20