The Probation of Offenders Act and sec.360 of Cr.P.C. - The Act distinguishes offenders below 21 years of age and those above that age and offenders who are guilty of committing an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under section 3 and 4 of the Act - youthful offenders should not be sent to jail, except in certain circumstances. Before, however, the benefit of the Act can be invoked, it has to be shown that the convicted person even though less than 21 years of age, is not guilty of an offence punishable with imprisonment for life. This is clear from the language of Section 6 of the Act.- we find that the High Court misread the provisions of the 1958 Act to hold that such Act is not applicable to the offender under the age of 21 years. The Court omitted that Section 6 of the 1958 Act provides that an offender of less than 21 years if found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Section 3 or Section 4, and if the Court passes any sentence of imprisonment on the offender it shall record its reasons for doing so.- the provisions of Section 360 of the Code and the Probation of Offenders Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provisions of the Code - Coming to the facts of the present case, the incident has occurred more than thirty years back in the year 1989. The appellant has suffered the proceedings for more than 30 years. There is no material on record that the appellant was involved in any other offence during the last more than thirty years. Therefore, we find that the High Court erred in law in not granting benefit of probation to the appellant convicting for an offence under Section 325 and Section 34 of IPC. Therefore, in terms of Section 360, it is ordered that the appellant be released on probation of good conduct for a period of one year on furnishing personal bond before the learned Trial Magistrate within a period of two months from the date of receipt of the certified copy of the order by the appellant.

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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1306 OF 2013
LAKHANLAL @ LAKHAN SINGH       ........APPELLANT

                 Versus
STATE OF MADHYA PRADESH                 ........RESPONDENT
  O R D E R
The challenge in the present appeal is to an order passed by the learned
Single   Judge   of   the   High   Court   of   Madhya   Pradesh   at   Jabalpur   on   05.01.2019
maintaining the conviction and sentence of the appellant for the offences under
Section   325   read   with   Section   34   of   IPC.     The   appellant   was   sentenced   to
undergo   rigorous   imprisonment   for   one   year   and  to   pay   a   fine   of   Rs.1000/-.   In
the event of non-payment of fine, the appellant was to undergo another period
of imprisonment for six months. 
2. Initially,   eight   accused   were   made   stand   to   trial   for   the   offences   under
Sections   147,   148,   149,   325   and   307   of   IPC   in   respect   of   the   incident,   which
occurred   on   30.10.1989   at   20.30   hours   at   Village   Sirodi   Police   Station   Doraha,
District Sehore.
3. The   prosecution�s   case   is   that   on   30.10.1989,   when   Ramesh   and   Munshi

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Lal   were   returning   to   their   home   after   seeing   Jaware,   accused-appellant   hit
complainant   Munshi   Lal   with   lathi   which   struck   on   the   elbow   of   his   left   hand
whereas the second blow was on the left side of his head.   After completion of
investigation,   the   accused-appellant   along   with   other   accused   was   made   to
stand trial before the learned Magistrate.
4.        The  appellant was convicted for the offences under Section 325 read with
Section 34 IPC . The two other accused convicted by the learned trial court also
went   in   appeal   to   the   High   Court   and   their   conviction   and   sentence   were   also
maintained. However, the appellant alone is in appeal before this Court.
5. The  High  Court   held   that   Section   360   of   the   Code   of   Criminal   Procedure 1
will not be applicable as the matter falls within Sections 3 and 4 of   Probation of
Offenders Act, 1958 2
. The relevant extracts from the judgment read as under: -
�The   submission   of   the   appellant   is   considered.   In
this reference, it is profitable to refer to Sub section 10
of   section   360   of   the   Cr.P.C.   which   prescribes   that
nothing in this section shall affect the provisions of the
Probation   of   Offenders   Act,   1958   (20   of   1958),   or   the
Children   Act,   1960   (60   of   1960),   or   any   other   law   for
the   time   being   in   force   for   the   treatment,   training   or
rehabilitation   of   youthful   offenders.   Therefore,   matter
as such is governed by Section 3 and 4 of the Probation
of   Offenders   Act,   1958   and   Section   360   of   the   Cr.P.C.
shall have no application in the present case.
A careful reading of section 3 and 4 of Probation of
Offenders Act, 1958 does not stipulate that the benefit
of   the   release   on   probation   for   good   conduct   after
admonition is to be given to such offenders who are 21
years   or   less   than   21   years   of   age   which   is   a   specific
provision made in Section 360 of the Cr.P.C.�
1   Code
2  1958 Act

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6 . We find that the order of the High Court is based upon erroneous reading
of the provisions of law and that the appellant is entitled to benefit of probation
in terms of Section 360 of the Code as well as under the 1958 Act.  The relevant
provisions  of Section 360 of the Code read as under:
�360. Order to release on probation of good conduct or
after admonition.
(1)   When   any   person   not   under   twenty-   one   years   of
age is convicted of an offence punishable with fine only
or with imprisonment for a term of seven years or less,
or when any person under twenty- one years of age or
any   woman   is-   convicted   of   an   offence   not   punishable
with   death   or   imprisonment   for   life,   and   no   previous
conviction   is   proved   against   the   offender,   if   it   appears
to the Court before which he is convicted, regard being
had   to   the   age,   character   or   antecedents   of   the
offender, and to the circumstances in which the offence
was   committed,   that   it   is   expedient   that   the   offender
should   be   released   on   probation   of   good   conduct,   the
Court   may,   instead   of   sentencing   him   at   once   to   any
punishment,  direct  that he   be   released  on  his   entering
into   a   bond   with   or   without   sureties,   to   appear   and
receive   sentence   when   called   upon   during   such   period
(not   exceeding   three   years)   as   the   Court   may   direct
and in the meantime to keep the peace and be of good
behaviour:   Provided   that   where   any   first   offender   is
convicted   by   a   Magistrate   of   the   second   class   not
specially   empowered   by   the   High   Court,   and   the
Magistrate   is   of   opinion   that   the   powers   conferred   by
this   section   should   be   exercised,   he   shall   record   his
opinion to that effect, and submit the proceedings to a
Magistrate of the first class, forwarding the accused to,
or   taking   bail   for   his   appearance   before,   such
Magistrate, who shall dispose of the case in the manner
provided by sub- section (2).
*** *** ***
(10)   Nothing in this section shall affect the provisions of
the   Probation   of   Offenders   Act,   1958   (20   of   1958),   or
the   Children   Act,   1960   (60   of   1960),   or   any   other   law
for the time being in force for the treatment, training or
rehabilitation of youthful offenders.�

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7.  Section   360(1)   of   the   Code   contemplates   as   to   which   offenders   are
entitled to the benefit of probation and on what conditions. It contemplates  that
firstly,   if   any   person   not   under   twenty-   one   years   of   age   is   convicted   of   an
offence   punishable   with   fine   only   or   with   imprisonment   for   a   term   of   seven
years or less; and  secondly,  when any person under twenty- one years of age or
any   woman   is   convicted   of   an   offence   not   punishable   with   death   or
imprisonment for life, is entitled to the  benefit of probation. Both categories  of
offenders have to further satisfy  that he is not a pr evious convict; satisfaction of
the   Court   having   regard   to   the   age,   character   or   antecedents   of   the   offender
and to the circumstances in which the offence was committed. The court being
satisfied can order, instead of sentencing him at once  to any punishment, that
he   be   released   on   his   entering   into   a   bond   with   or   without   sureties,   to   appear
and receive sentence when called  upon during such period (not exceeding three
years) and in the meantime to keep the peace and be of good behaviour.
8.  Thus, if the offender is less than 21 years of age or a woman not convicted  of
an offence not punishable with death or imprisonment for life;  such offender can
be   granted   benefit   of   probation   on   satisfaction   of   the   court   on   the   basis   of
parameters   contained   in   Section   360   of   the   Code.   However,   in   respect   of   an
offender more than 21 years of age, the benefit of release is available only if the
offence is punishable for less than seven years imprisonment or fine. The  object
of Section 360 of the Code is to prevent young persons from being committed to
jail,   who   have   for   the   first-time   committed   crimes   through   ignorance,   or
inadvertence or the bad influence of others and who, but for such lapses, might
be expected to be good citizens.

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9. The   Court   is   empowered   to   release   an   offender   who   is   convicted   of   an
offence punishable with imprisonment for not more than two years, or with fine,
or with both, under the Indian Penal Code or any other law in terms of Section 3
of   the  1958   Act,   subject  to   the   condition  that  no   previous   conviction   is   proved
against   him.   In   terms   of   Section   4   of   the   1958   Act,   an   offender   cannot   be
released   on   probation   if   such   offender   has   a   fixed   place   of   abode   or   regular
occupation   in   the   place   over   which   the   court   exercises   jurisdiction   or   in   which
the offender is likely to live during the period for which he enters into the bond,
after taking into consideration the report, if any, of the probation officer before
making any order. Such exercise is required to be performed if an offender is not
convicted   of   an   offence   punishable   with   death   or   imprisonment   for   life,   then,
notwithstanding anything contained in any other law for the time being in force,
the   court   may   release   a   convict   instead   of   sentencing   him   at   once   to   any
punishment   on   probation     subject   to   the   conditions   specified   in   Section   4   of
1958 Act. Sections 3 and 4 of the 1958 Act read as under:-
� 3.   Power   of   court   to   release   certain   offenders
after   admonition. �When   any   person   is   found   guilty
of   having   committed   an   offence   punishable   under
section   379   or   section   380   or   section   381   or   section
404   or   section   420   of   the   Indian   Penal   Code,   (45   of
1860) or any offence punishable with imprisonment for
not   more   than   two   years,   or   with   fine,   or   with   both,
under  the   Indian  Penal  Code,   or   any  other  law,   and   no
previous conviction is proved against him and the court
by   which   the   person   is   found   guilty   is   of   opinion   that,
having   regard   to   the   circumstances   of   the   case
including   the   nature   of   the   offence,   and   the   character
of   the   offender,   it   is   expedient   so   to   do,   then,
notwithstanding anything contained in any other law for
the   time   being   in   force,   the   court   may,   instead   of
sentencing him to any punishment or releasing him on
probation of good conduct under section 4 release him
after due admonition.

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  Explanation.�For   the   purposes   of   this   section,
previous   conviction   against   a   person   shall   include   any
previous   order   made   against   him   under   this   section   or
section 4.
4. Power of court  to  release certain offenders on
probation of good conduct. �(1) When any person is
found   guilty   of   having   committed   an   offence   not
punishable  with death or  imprisonment for life  and the
court   by   which   the   person   is   found   guilty   is   of   opinion
that,   having   regard   to   the   circumstances   of   the   case
including the nature of the offence and the character of
the offender, it is expedient to release him on probation
of   good   conduct,   then,   notwithstanding   anything
contained   in   any  other   law  for   the   time   being   in   force,
the   court   may,   instead   of   sentencing   him   at   once   to
any   punishment   direct   that   he   be   released   on   his
entering into a bond, with or without sureties, to appear
and   receive   sentence   when   called   upon   during   such
period,   not   exceeding   three   years,   as   the   court   may
direct,  and  in   the   meantime   to  keep  the   peace   and  be
of good behaviour: 
Provided that the court shall not direct such release
of an offender unless it is satisfied that the offender or
his surety, if any, has a fixed place of abode or regular
occupation   in   the   place   over   which  the   court   exercises
jurisdiction   or   in   which   the   offender   is   likely   to   live
during the period for which he enters into the bond.
(2)   Before   making   any   order   under   sub-section   (1),
the court shall take into consideration the report, if any,
of   the   probation   officer   concerned   in   relation   to   the
case.� 
10. A   three   Judge   Bench   of   this   Court   in   Rattan   Lal   v.   State   of   Punjab 3
while  examining the   provisions  of  1958  Act  held that in  case  the  offenders  are
below   21   years,   an   injunction   is   issued   to   the   Court   not   to   sentence   them   to
imprisonment   unless   it   is   satisfied   that   having   regard   to   circumstances   of   the
case,  it   is   not   desirable   to   deal   with  them   under  Sections   3  and  4   of   1958   Act
but   in   respect   of   offenders   who   were   above   age   of   21   years,   the   Court   has
3   AIR 1965 SC 444

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absolute   discretion   to   release   such   offenders   either   after   admonition   or   on
probation of good conduct. The Court held as under:-
�The Act  is a milestone in the progress of the modern liberal
trend of reform in the field of penology.  It is the result of the
recognition  of the doctrine  that  the  object  of criminal law  is
more   to   reform   the   individual   offender   than   to   punish   him.
The   Act   distinguishes   offenders   below   21   years   of   age   and
those   above   that   age   and   offenders   who   are   guilty   of
committing   an   offence   punishable   with   death   or
imprisonment   for   life   and   those   who   are   guilty   of   a   lesser
offence.  While  in  the  case  of   offenders     who are  above  the
age of 21  years, absolute discretion  is given  to the court to
release   them     after   admonition     or   on   probation   of   good
conduct, in the case   of offenders below the age of 21 years
an injunction is issued to  the court not to  sentence them to
imprisonment unless it is satisfied that having regard to the
circumstances   of   the   case,   including   the   nature   of   the
offence   and   the     character   of   the   offenders,   it   is   not
desirable   to     deal     with   them   under   section   3   and   4   of   the
Act.�
11. This   Court   in   Jugal   Kishore   Prasad   v.   State   of   Bihar 4
  explained   the
rationale of the provision as to prevent the conversion of youthful offenders into
obdurate   criminals   as   a   result   of   their   association   with   hardened   criminals   of
mature   age   in   case   the   youthful   offenders   are   sentenced   to   undergo
imprisonment in jail. The Court held as under:-
�6.   The Probation of Offenders Act was enacted in 1958
with   a   view   to   provide   for   the   release   of   offenders   of
certain categories on probation or after due admonition
and for matters connected therewith. The object of the
Act   is   to   prevent   the   conversion   of   youthful   offenders
into   obdurate   criminals   as   a   result   of   their   association
with   hardened   criminals   of   mature   age   in   case   the
youthful   offenders   are   sentenced   to   undergo
imprisonment in jail. The above object is in consonance
with   the   present   trend   in   the   field   of   penology,
4   (1972) 2 SCC 633

8
according   to   which   effort   should   be   made   to   bring
about   correction   and   reformation   of   the   individual
offenders   and   not   to   resort   to   retributive   justice.
Modern criminal jurisprudence recognises that no one is
a   born   criminal   and   that   a   good   many   crimes   are   the
product   of   socio-   economic   milieu.   Although   not   much
can be done for hardened criminals, considerable stress
has   been   laid   on   bringing   about   reform   of   young
offenders   not   guilty   of   very   serious   offences   and   of
preventing   their   association   with   hardened   criminals.
The   Act   gives   statutory   recognition   to   the   above
objective.   It   is,   therefore,   provided   that   youthful
offenders   should   not   be   sent   to   jail,   except   in   certain
circumstances.   Before,   however,   the   benefit   of   the   Act
can   be   invoked,   it   has   to   be   shown   that   the   convicted
person   even   though   less   than   21   years   of   age,   is   not
guilty   of   an   offence   punishable   with   imprisonment   for
life. This  is  clear from the language of Section 6 of the
Act.�
12. The offence under Section 325 is punishable for a term which may extend
to   seven   years.   The   sentence   imposed   upon   the   appellant   is   of   one   year.   T he
finding   of   the   High   Court   that   Section   360   of   the   Code   shall   not   have   any
application is misreading of the bare provisions of the Code. Sub-Section (10) of
Section   360   of   the   Code   specifically   contemplates   that   the   provisions   of   the
1958   Act   or   Children   Act   1960   or   any  other   law   for   the   time   being   in   force   for
the   treatment,   training   or   rehabilitation   of   the   youth   of   the   offenders   are   not
affected by the Code. Therefore, the provisions of the Code are not excluded by
the 1958 Act. Both the provisions, Section 360 of the Code as well as 1958 Act,
are   applicable   in   respect   of   the   offenders   before   the   Court.   Therefore,   we   find
that the High Court misread the provisions of the 1958 Act to hold that such Act
is  not applicable  to the  offender under the  age  of 21  years.  The Court omitted
that Section 6 of the 1958 Act provides that an offender of less than 21 years  if
found guilty of having committed an offence punishable with imprisonment (but

9
not   with   imprisonment   for   life),   the   Court   by   which   the   person   is   found   guilty
shall not sentence him to imprisonment unless it is satisfied that, having regard
to   the   circumstances   of   the   case   including   the   nature   of   the   offence   and   the
character   of   the   offender,   it   would   not   be   desirable   to   deal   with   him   under
Section 3 or Section 4, and if the Court passes any sentence of imprisonment on
the offender it shall record its reasons for doing so. Thus, the High Court  erred in
law   in   not   granting   benefit   of   probation   to   the   appellant   for   an   offence   under
Section 325 read with Section 34 of the IPC.
13.   The   distinction   is   that   under   the   1958   Act,   the   Court   is   required   to   seek
report   from   the   Probationary   Officer   before   allowing   an   offender   the   benefit   of
probation   apart   from   satisfying   other   conditions,   whereas   there   is   no   such
limitation while exercising the powers under Section 360 of the Code.
14. At   this   stage,   it   may   be   noticed   that   a   two   Judge   Bench   of   this   Court   in
Sanjay   Dutt   v.   The   State   of   Maharashtra 5
  considering   the   provisions   of
Section   360   of   the   Code   and   Sections   3   and   4   of   1958   Act   held   that   the   co-
existence of such provisions would lead to enormous results. It was further held
that the intention to retain the provisions of Section 360 of the Code and 1958
Act at the same time in a given area cannot be gathered from the provisions of
Section 360 or any provision of the Code, when the Court held as under:-
�81)   Section 360 of the Code of Criminal Procedure does not
provide   for   any   role   for   probation   officers   in   assisting   the
courts in relation to supervision and other matters while the
Probation   of   Offenders   Act   does   make   such   a   provision.
While   Section   12   of   the   Probation   of   Offenders   Act   states
that a person found guilty of an offence and dealt with under
Section   3   or   4   of   the   Probation   of   Offenders   Act,   shall   not
5   2013 SCConline SC 252

10
suffer   disqualification,   if   any,   attached   to   the   conviction   of
an   offence   under   any   law.   The   Code   of   Criminal   Procedure
does   not   contain   parallel   provision.   Two   statutes   with   such
significant   differences   could   not   be   intended   to   co-exist   at
the   same   time   in   the   same   area.   Such   co-existence   would
lead   to   anomalous   results.   The   intention   to   retain   the
provisions   of   Section   360   of   the   Code   and   the   Probation   of
Offenders Act as applicable at the same time in a given area
cannot   be   gathered   from   the   provisions   of   Section   360   or
any other provisions of the Code.�
15. We find that the attention of the Court was not drawn to sub Section (10)
of Section 360 which provides that Section 360 will not affect the provisions of
1958   Act   or   other   similar   laws   for   the   time   being   in   force   for   the   treatment,
training   or   rehabilitation   of   youthful   offenders .   Still   further,   Section   4   of   the
1958   Act   has   a   non   obstante   clause,   giving   overriding   effect   over   any   other
provisions of law.
16. The   conjoint   reading   of   the   provisions   of   both   the   statutes,   we   find   that
the provisions of Section 360 of the Code are in addition to the provisions of the
1958 Act or the Children Act, 1960, or any other law for the time being in force
for the treatment, training or rehabilitation of youthful offenders.
17. Coming   to   the   facts   of   the   present   case,   the   incident   has   occurred   more
than   thirty   years   back   in   the   year   1989.   The   appellant   has   suffered   the
proceedings   for   more   than   30   years.     There   is   no   material   on   record   that   the
appellant   was   involved   in   any   other   offence   during   the   last   more   than   thirty
years. Therefore, we find that the High Court erred in law in not granting benefit
of   probation   to   the   appellant   convicting   for   an   offence   under   Section   325   and
Section   34   of   IPC.   Therefore,   in   terms   of   Section   360,   it   is   ordered   that   the

11
appellant be released on probation of good conduct for a period of one year on
furnishing   personal   bond   before   the   learned   Trial   Magistrate   within   a   period   of
two   months   from   the   date   of   receipt   of   the   certified   copy   of   the   order   by   the
appellant.
18. The appeal is disposed of in above terms.
��..�.�������������J.
(SANJAY KISHAN KAUL)
�.�.���.����������..J.
     (HEMANT GUPTA)
New Delhi
April 4, 2019.

12
ITEM NO.106               COURT NO.12               SECTION II-A
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS
Criminal Appeal  No.1306/2013
LAKHANLAL @ LAKHAN SINGH                           Appellant(s)
                                VERSUS
STATE OF MADHYA PRADESH              Respondent(s)
(FOR EXEMPTION FROM FILING OF THE TRANSLATION OF ALL THE DOCUMENTS
ON IA NO.46693/2017)

Date : 04-04-2019 This appeal was called on for hearing today.
CORAM :
         HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
         HON'BLE MR. JUSTICE HEMANT GUPTA
For Appellant(s) Mr. Uday Ram Bokadia, Adv.
Ms. Divya Garg, Adv.
                    Dr.  (Mrs. ) Vipin Gupta, AOR
                 
For Respondent(s) Mr. Kuber Boodh, Adv.
                    Mrs. Swarupama Chaturvedi, AOR
                   
          UPON hearing the counsel the Court made the following
                             O R D E R
The appeal is disposed of in terms of the signed order.
Pending application (s), if any, shall also stand disposed of.
(POOJA ARORA)                                  (ANITA RANI AHUJA)
 COURT MASTER                                      COURT MASTER
(Signed order is placed on the file) 

second wife- Shaini Devi has no right to the receive monetory benefits on the basis of such void marriage. = we are of the opinion that during the subsistence of the first marriage, second marriage is void and the second wife- Shaini Devi has no right to the receive monetory benefits on the basis of such void marriage. The plaintiff- appellant herein as well as defendant No.9-Pinki are entitled to the service/retiral benefits of the deceased.

1
    IN THE SUPREME COURT OF INDIA
    CIVIL APPELLATE JURISDICTION
         CIVIL APPEAL NO.4263/2019
      [@ SLP [C] NO.13045/2018]
PHOOLMA DEVI                                  Appellant(s)
                                VERSUS
BIKRAM SINGH & ORS.                           Respondent(s)
O R D E R
Leave granted.
The   appeal   arises   out   of   the   judgment   and   order
passed by the High Court of Punjab & Haryana at Chandigarh
in RSA No.4171 of 2015 dated 11.01.2018.
Brief   facts   of   the   case   are   that   deceased-Parveen
Singh   had   joined   the   service   of   Punjab   State   Electricity
Board   as   a   Khalasi   at   Bhatinda,   Punjab   on   18.10.1972   and
his services were regularized on 18.04.1975.
In   the   year   1974,   the   appellant-Phoolma   Devi   got
married to Parveen Singh and resided at the native village
of   her   husband   at   Khand,   Tehri   Garhwal,   Uttarakhand.     On
07.05.1981, a daughter Pinki was born to her. 
On   25.05.2009,   Parveen   Singh   died   while   he   was   on
duty   and   working   at   Ropar,   Punjab.     After   his   death,   the
appellant   came   to   know   that   her   husband,   during   the
subsistence   of   their   marriage   had   contracted   another

2
marriage  with  respondent  No.2-Shaini  Devi  who  was  residing
with   him   in   the   allotted   Government   quarter   in   Ropar,
Punjab. 
The   appellant   sent   a   representation   to   the   Punjab
State   Electricity   Board,   Chief   Engineer,   GGSSTP,   Ropar
claiming payment of death and retiral benefits to her.
When   no   steps   were   taken,   being   aggrieved   from   the
inaction   of   the   concerned   authorities   for   disbursing   the
payment   of   death   claim   and   all   retiral   benefits,   the
appellant   filed   a   Civil   Suit   No.RT-RT-52   of   18.02.2010   in
the Court of Civil Judge, Senior Division, Rupnagar, Punjab
seeking   declaration   to   the   effect   that   the   appellant   and
proforma   respondent   No.8   herein-defendant   No.9   being   legal
heirs   and   entitled   to   receive   all   the   monetary   benefits
accrued   due   to   death   of   Parveen   Singh   to   the   extent   of   �
share   and   further   praying   for   the   relief   of   mandatory
injunction   directing   the   respondent   No.4   to   7   to   pay   all
the service benefits to the appellant and respondent No.8.
The   trial   Court   vide   order   and   judgment   dated
28.11.2013   passed   in   Civil   Suit   No.RT-RT-52   allowed   the
prayer   made   by   the   appellant   and   concluded   that   the
appellant was the first wife of Parveen Singh and Pinki was
their   daughter   and   thus   they   were   entitled   to   receive   the
monetary benefits.
The decision of the trial Court was challenged before
the Additional District Judge.  Vide order dated 28.11.2014
in   Civil   Appeal   No.8/4.1.2014   the   appeal   filed   by

3
respondent No.1 to 3 herein was dismissed and the order of
the trial Court was upheld.
In   appeal,   the   High   Court   vide   judgment   and   order
dated   11.01.2018   in   RSA   No.4171   of   2015   disposed   of   the
appeal of respondent NO.1 to 3.  Hence the appeal.
Admittedly,   Phoolma   Devi   is   the   first   legally   wedded
wife of the deceased Parveen Singh.   The plaintiff filed a
suit   for   seeking   declaration   to   the   effect   that   she   and
defendant No.9-Pinki, her daughter, are entitled to receive
all   the   monetory   benefits   accrued   on   the   death   of   Parveen
Singh from defendant Nos.2 to 5. Defendant No.6-Shaini Devi
claimed   marriage   with   the   deceased   employee   during   the
survival of the first marriage with the plaintiff-appellant
Phoolma   Devi.     The   marriage   of   the   deceased   employee   with
Phoolma Devi had not been dissolved.
By   virtue   of   the   fact   that   in   certain   nomination
papers,   the   name   of   Shaini   Devi   was   mentioned,   dispute
arose   with   respect   to   the   dues   payable   by   defendant   Nos.2
to   5   i.e.   Punjab   State   Electricity   Board   and   others   where
the deceased was in employment.
After hearing learned counsel for the parties, we are
of   the   opinion   that   during   the   subsistence   of   the   first
marriage,   second   marriage   is   void   and   the   second   wife-
Shaini   Devi   has   no   right   to   the   receive   monetory   benefits
on   the   basis   of   such   void   marriage.     The   plaintiff-
appellant   herein   as   well   as   defendant   No.9-Pinki   are
entitled to the service/retiral benefits of the deceased.

4
Accordingly, the appeal is allowed.
However,   this   determination   would   not   affect   any
other property dispute, if any, between the parties.
��������.J.
[ARUN MISHRA]
��������.J.
[NAVIN SINHA]
NEW DELHI;
APRIL 24, 2019.

5
ITEM NO.12               COURT NO.4               SECTION IV
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS
Petition (s) for Special Leave to Appeal (C) No.13045/2018
(Arising out of impugned final judgment and order dated 11-01-2018
in RSA No.4171/2015 passed by the High Court of Punjab & Haryana at
Chandigarh)
PHOOLMA DEVI                                       Petitioner(s)
                                VERSUS
BIKRAM SINGH & ORS.                                Respondent(s)
(FOR ADMISSION and I.R. and IA No.72793/2018-EXEMPTION FROM FILING
O.T. )

Date : 24-04-2019 This matter was called on for hearing today.
CORAM :
         HON'BLE MR. JUSTICE ARUN MISHRA
         HON'BLE MR. JUSTICE NAVIN SINHA
For Appellant(s) Mr. Hussain Syed Mehdi, Adv.
Mr. R.S. Mishra, Adv.
Mr. Alok Shukla, AOR
Mr. Rushi Khan, Adv.
                 
For Respondent(s)  Ms. Zehra Khan, Adv.
                    Mr. Karan Bharihoke, AOR
                 
Mr. Sibo Sankar Mishra, AOR
                   
          UPON hearing the counsel the Court made the following
                             O R D E R
Leave granted.
The appeal is allowed in terms of the signed order.
Pending application stands disposed of.
(ASHA SUNDRIYAL)                                (JAGDISH CHANDER)
  COURT MASTER                                   BRANCH OFFICER
[signed order is placed on the file] 

Magistrate has got power to monitor investigation by police = Section 156(3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly, and can monitor the same. ;Merely because there are allegations against Govt. - CBI enquiry should not be ordered =The sweeping remarks that the allegations are against the Government and the Board which consist of Government functionaries; therefore, the matter requires to be investigated by CBI are wholly untenable and such sweeping remarks against the Government and/or the Board should not have been made. The functioning in the Government is by different Officers and the working of the Executive has inbuilt checks and balances. Therefore, merely because, permission has been granted by a functionary of the State Government will not disclose a criminal offence. The High Court has thus travelled much beyond its jurisdiction in directing investigations by CBI in a matter of sale of property of the Deity. Still further, the High Court has issued directions without their being any complaint to the local police in respect of the property of the religious Trust.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4003 OF 2019
(Arising out of SLP (C) No. 24177 of 2017)
SHREE SHREE RAM JANKI JI …….APPELLANTS
ASTHAN TAPOVAN MANDIR & ANR.
VERSUS
THE STATE OF JHARKHAND & ORS. ….…RESPONDENTS
J U D G M E N T
Hemant Gupta, J.
The present appeal is directed against an order passed by the High Court
of Jharkhand at Ranchi on 07.06.2017 directing the Central Bureau of
Investigation to investigate and to take appropriate action at the earliest and
conclude the investigations preferably within six months. The High Court held as
under:-
 “……This Court is of prima facie view that land of the
deity could not have been transferred in any case. This
large scale illegality needs to be enquired into. Now the
question is, who will do so? The land and trust which is
involved in this case is of Ranchi. Allegation is against the
Government and the Board. Board consists of
1
Government functionaries. In this case, another issue is
illegally sanctioning of map by Government Officials.
We find, as submitted by the petitioner that in one Public
Interest Litigation being WP(PIL) No. 1531 of 2011 (Har
Narain Lakhotia Vs. State of Jharkhand and Others) this
Court directed the CBI to enquire/investigate the
criminality part in giving such sanction in respect of many
buildings of Ranchi. The said order has been upheld by
the Hon'ble Supreme Court. This is also one of such case,
which needs investigation.
16. On this background, this Court feels that this matter
be also entrusted to the Central Bureau of Investigation
for investigating the criminality part. This would also
include the aspects and the intent involved in creation of
Trust Deed dated 20.9.2005, transfer/conversion of land,
permission of maps and all other incidental issues
involved.”
2. The said directions were issued finding that the property of Deity Shree
Shree Ram Janki Ji Asthan Tapowan Mandir1
 at Ranchi has been transferred
against the mandate of the Trust Deed created by the author of the Trust to
establish Shree Ram Janki Tapowan Mandir Trust2
 on 25.02.1948. The said Trust
was reconstituted on 12.05.1987 by virtue of registered deed. Still further, by
another deed dated 20.09.2005, there was again reconstitution of the Trust.
3. The High Court entertained the Public Interest Litigation preferred by
Respondent No. 8, and held that there is no provision in the original Trust Deed to
transfer/sale of the property of the Deity but with ulterior motive, new Trust Deed
was prepared in the year 2005 to usurp the property of the Deity and to facilitate
illegal transfer of land of the Deity.
4. The directions issued by the High Court are subject matter of challenge
before this Court by the Trust and by Pujari of the Mandir. The argument is that
there is provision to develop and transfer the property of the Deity. Some of the
1 Mandir
2 Trust
2
properties of the Trust were being illegally encroached by local inhabitants and for
better return and to increase the funds, the properties were transferred. The
appropriate approvals have been obtained from Bihar State Board of Religious
Trust and that the learned Judicial Commissioner has granted approval of transfer
of immovable property.
5. The High Court found that properties were endowed to the Deity by the
Trust Deed of 1948 and that the Trustees became custodian of the same. The
subsequent Trust Deed of 1987 again prohibits the Trustees from selling or
transferring or settling a land of the Mandir or Deity. The Trust Deed of 1948 and
that of 1987 were authored by Mahant Shri Janki Jiwan Sharan but subsequently
on 20.09.2005 a new Trust Deed has been created. Mahant Shri Ram Sharan
Dass registered the said Trust Deed though the founder was Late Janki Jiwan
Sharan. The said Trust Deed has a clause by which landed property can be sold.
6. The High Court found that the permission of Jharkhand State Hindu
Religious Trust Board granted in the year 2006 was based upon permission
granted by Bihar State Board of Religious Trust in the year 1994 which was
obtained by misrepresentation and fraud.
7. The writ petitioner has invoked the Public Interest Jurisdiction of the High
Court, inter-alia claiming the following reliefs:-
“(i) For issuance of an appropriate writ(s)/order (s)/
direction(s) or a writ in nature of mandamus commanding
upon the respondents to conduct an inquiry preferably by
an Agency other than the Agency of the State in the
matter of illegal transfer of property belonging to Sri Ram
Janki Tapowan Mandir Trust since the substantial
properties of the trust has been misappropriated by the
members of the Trust in connivance with the government
officials for sale of land belonging to the Trust as well as
for construction of building over the land considering the
fact that the valuable property of the Trust has been
3
illegally transferred to the private persons who have the
support of the most of the higher authorities of the State.”
8. The Public Interest Litigation was filed by Respondent No. 8 projecting
himself as a responsible and vigilant citizen of the Country and being a Hindu by
faith, therefore, as under pious responsibility to protect the interest of the Deity as
per his faith. The Respondent No. 8 has not lodged any report before the
concerned police station making grievance of any one of the facts stated in the writ
petition so as to initiate the process of investigations under the Code of Criminal
Procedure, 19733
. The writ petitioner has not made any grievance to any public
authority in respect of the alleged transfers by the Trustees as well.
9. The High Court has passed an order directing investigation by Central
Bureau of Investigation by casually returning a finding that permission was
obtained by the Trust by misrepresentation and fraud. The High Court was again
not careful to return findings on the disputed questions of fact and that too in a
public interest writ petition.
10. The vesting of the property in Deity is a religious endowment but has no
public element in it, the grievance of which can be made in a writ petition filed in
the public interest. We do not say any more than the fact that the High Court
should have refrained from entertaining such Public Interest Litigation in respect of
alleged wrongful sale of property of the religious bodies.
11. Section 44 of the Bihar Hindu Religious Trust Act, 19504
 gives power of
transfer of immovable property of a religious trust after taking previous sanction
from the Board. Such permission is to convert any property of the Trust after
approval of the District Judge as provided by Section 28 (j) of the Act. The stand
3 Code
4 Act
4
of the appellants is that they have obtained approval as contemplated by the Act
and such approval has been sought as an act of prudent management. Therefore,
the High Court was not justified in creating a suspicion on an act of transferring the
land of the Deity.
12. The question as to whether the High Court could direct CBI to take over
investigation in the facts of the present case needs to be examined. The
Constitution Bench in its judgment reported as State of West Bengal and Others
v. Committee for Protection of Democratic Rights, West Bengal and Others5
has examined the question as to the rights of CBI to investigate a criminal offence
in a State without its consent. This Court examined Entry 2 of List II of VII
Schedule of the Constitution. It was held that the legislative power of the Union to
provide for the regular police force of one State to exercise power and jurisdiction
in any area outside the State can only be exercised with the consent of the
Government of that particular State in which such area is situated. The Court held
that though the Court had wide powers conferred by Articles 32 and 226 of the
Constitution, but it must bear in mind certain self-imposed limitations on the
exercise of these constitutional powers. This extraordinary power must be
exercised sparingly, cautiously and in exceptional situations where it becomes
necessary to provide credibility and instil confidence in investigation or where the
incident may have national or international ramifications or where such an order is
necessary for doing complete justice and enforcing fundamental rights. The
relevant extract from the judgment reads as under:-
“70. Before parting with the case, we deem it necessary
to emphasise that despite wide powers conferred by
Articles 32 and 226 of the Constitution, while passing any
order, the Courts must bear in mind certain self-imposed
5 (2010) 3 SCC 571
5
limitations on the exercise of these constitutional powers.
The very plenitude of the power under the said articles
requires great caution in its exercise. Insofar as the
question of issuing a direction to CBI to conduct
investigation in a case is concerned, although no inflexible
guidelines can be laid down to decide whether or not such
power should be exercised but time and again it has been
reiterated that such an order is not to be passed as a
matter of routine or merely because a party has levelled
some allegations against the local police. This
extraordinary power must be exercised sparingly,
cautiously and in exceptional situations where it becomes
necessary to provide credibility and instil confidence in
investigations or where the incident may have national
and international ramifications or where such an order
may be necessary for doing complete justice and
enforcing the fundamental rights. Otherwise CBI would be
flooded with a large number of cases and with limited
resources, may find it difficult to properly investigate even
serious cases and in the process lose its credibility and
purpose with unsatisfactory investigations.”
13. The Court approved earlier two Judge Bench Judgment reported as
Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Others v.
Sahngoo Ram Arya and Another6 wherein it was held that the High Court under
Article 226 of the Constitution can direct inquiry to be conducted by CBI but such
power can be exercised only in cases where there is sufficient material to come to
a prima facie conclusion that there is need for such inquiry. It was held that it is not
sufficient to have such material in the pleadings. The Court also held that the right
to live under Article 21 include the right of a person to live without being hounded
by the police or CBI to find out whether he has committed any offence or is living
as a law-abiding citizen. The relevant extracts from the judgment read as under:-
“5. While none can dispute the power of the High Court
under Article 226 to direct an inquiry by CBI, the said
power can be exercised only in cases where there is
sufficient material to come to a prima facie conclusion that
there is a need for such inquiry. It is not sufficient to have
6 (2002) 5 SCC 521
6
such material in the pleadings. On the contrary, there is a
need for the High Court on consideration of such
pleadings to come to the conclusion that the material
before it is sufficient to direct such an inquiry by CBI. This
is a requirement which is clearly deducible from the
judgment of this Court in the case of Common Cause7
.
This Court in the said judgment at paragraph 174 of the
Report has held thus: (SCC p. 750, para 174)
“174. The other direction, namely, the direction to
CBI to investigate ‘any other offence’ is wholly
erroneous and cannot be sustained. Obviously,
direction for investigation can be given only if an
offence is, prima facie, found to have been
committed or a person's involvement is prima facie
established, but a direction to CBI to investigate
whether any person has committed an offence or
not cannot be legally given. Such a direction would
be contrary to the concept and philosophy of ‘LIFE’
and ‘LIBERTY’ guaranteed to a person under Article
21 of the Constitution. This direction is in complete
negation of various decisions of this Court in which
the concept of ‘LIFE’ has been explained in a
manner which has infused ‘LIFE’ into the letters of
Article 21.”
6. It is seen from the above decision of this Court that the
right to life under Article 21 includes the right of a person
to live without being hounded by the police or CBI to find
out whether he has committed any offence or is living as a
law-abiding citizen. Therefore, it is clear that a decision to
direct an inquiry by CBI against a person can only be
done if the High Court after considering the material on
record comes to a conclusion that such material does
disclose a prima facie case calling for an investigation by
CBI or any other similar agency, and the same cannot be
done as a matter of routine or merely because a party
makes some such allegations. In the instant case, we see
that the High Court without coming to a definite
conclusion that there is a prima facie case established to
direct an inquiry has proceeded on the basis of “ifs” and
“buts” and thought it appropriate that the inquiry should be
made by CBI. With respect, we think that this is not what
is required by the law as laid down by this Court in the
case of Common Cause.”
7 (1999) 6 SCC 667
7
14. It is the said findings, which were approved specifically by the Constitution
Bench in State of West Bengal (supra) holding as under:-
“71. In Minor Irrigation & Rural Engg. Services,
U.P. v. Sahngoo Ram Arya this Court had said that an
order directing an enquiry by CBI should be passed only
when the High Court, after considering the material on
record, comes to a conclusion that such material does
disclose a prima facie case calling for an investigation by
CBI or any other similar agency. We respectfully concur
with these observations.”
15. A three Judge Bench Judgment reported as Sujatha Ravi Kiran v. State of
Kerala and Others8 held that the extraordinary power of the Constitutional Courts
in directing CBI to conduct investigation in a case must be exercised rarely in
exceptional circumstances, especially, when there is lack of confidence in the
investigating agency or in the national interest. This Court held as under:-
 “10. Taking into account the law laid down by this Court
in Committee for Protection of Democratic Rights 9
,
direction for investigation by CBI was declined by this
Court in K. Saravanan Karuppasamy v. State of
T.N.10 and Sudipta Lenka v. State of Odisha11
.
11. Considering the facts and circumstances of the case
in hand, in the light of the above principles, we are of the
view that the case in hand does not entail a direction for
transferring the investigation from the State police/special
team of State police officers to CBI. The facts and
circumstances in which the offence is alleged to have
been committed can be better investigated into by the
State police. However, having regard to the nature of
allegations levelled by the petitioner, we deem it
appropriate to direct the State of Kerala to constitute a
special team of police officers headed by an officer not
below the rank of Deputy Inspector General of Police to
investigate the matter.”
8 (2016) 7 SCC 597
9 State of W.B. v. Committee for Protection of Democratic Rights (supra)
10 (2014) 10 SCC 406
11 (2014) 11 SCC 527
8
16. In another three Judge Bench Judgment reported as K.V. Rajendran v.
Superintendent of Police, CBCID South Zone, Chennai and Others12, it was
held that the Court could exercise its constitutional powers for transferring an
investigation from the State investigating agency to any other independent
investigating agency only in rare and exceptional circumstances. The Court gave
instances such as where high officials of State authorities are involved, or the
accusation itself is against the top officials of the investigating agency thereby
allowing them to influence the investigation, and to instil confidence in the
investigation.
17. In another two Judge Bench Judgment reported as Bimal Gurung v. Union
of India13 , this Court held that the power of transferring such investigation must be
in rare and exceptional cases where the Court finds it necessary in order to do
justice between the parties and to instil confidence in the public mind. It was held
as under:-
 “29. The law is thus well settled that power of transferring
investigation to other investigating agency must be
exercised in rare and exceptional cases where the court
finds it necessary in order to do justice between the
parties to instil confidence in the public mind, or where
investigation by the State Police lacks credibility. Such
power has to be exercised in rare and exceptional cases.
In K.V. Rajendran v. Supt. of Police, this Court has noted
few circumstances where the Court could exercise its
constitutional power to transfer of investigation from State
Police to CBI such as: (i) where high officials of State
authorities are involved, or (ii) where the accusation itself
is against the top officials of the investigating agency
thereby allowing them to influence the investigation, or (iii)
where investigation prima facie is found to be
tainted/biased.”
12 (2013) 12 SCC 480
13 (2018) 15 SCC 480
9
18. In an earlier two Judge Bench Judgment reported as T.C. Thangaraj v. V.
Engammal and Others14, this Court found that merely because complaint was
against the police officer, the investigations should not be entrusted to Central
Bureau of Investigation. The Court held as under:-
 “8. The learned counsel for the complainant, on the other
hand, cited a decision of two-Judge Bench of this Court
in Ramesh Kumari v. State (NCT of Delhi)15 in which this
Court directed CBI to register a case and investigate into
the complaint of the appellant because the complaint was
against the police officer and the Court was of the view
that the interest of justice would be better served if the
case is registered and investigated by an independent
agency like CBI.
9. The decision of the two-Judge Bench of this Court
in Ramesh Kumari v. State (NCT of Delhi) will have to be
now read in the light of the principles laid down by the
Constitution Bench of this Court in State of
W.B. v. Committee for Protection of Democratic Rights.
The Constitution Bench has considered at length the
power of the High Court to direct investigation by CBI into
a cognizable offence alleged to have been committed
within the territorial jurisdiction of a State and while taking
the view that the High Court has wide powers under
Article 226 of the Constitution cautioned that the courts
must bear in mind certain self-imposed limitations.
*** *** ***
11. In the impugned order, the High Court has not
exercised its constitutional powers under Article 226 of the
Constitution and directed CBI to investigate into the
complaint with a view to protect the complainant's
personal liberty under Article 21 of the Constitution or to
enforce her fundamental rights guaranteed by Part III of
the Constitution. The High Court has exercised its power
under Section 482 CrPC on a grievance made by the
complainant that her complaint that she was cheated in a
loan transaction of Rs 3 lakhs by the three accused
persons, was not being investigated properly because
one of the accused persons is an Inspector of Police. In
our considered view, this was not one of those
exceptional situations calling for exercise of extraordinary
14 (2011) 12 SCC 328
15 (2006) 2 SCC 677
10
power of the High Court to direct investigation into the
complaint by CBI. If the High Court found that the
investigation was not being completed because P.
Kalaikathiravan, an Inspector of Police, was one of the
accused persons, the High Court should have directed the
Superintendent of Police to entrust the investigation to an
officer senior in rank to the Inspector of Police under
Section 154(3) CrPC and not to CBI.
12. It should also be noted that Section 156(3) of the
Code of Criminal Procedure provides for a check by the
Magistrate on the police performing their duties and
where the Magistrate finds that the police have not done
their duty or not investigated satisfactorily, he can direct
the police to carry out the investigation properly, and can
monitor the same. (See Sakiri Vasu v. State of U.P.16)”
19. We find that the finding recorded by the High Court that the Deity could not
transfer its land in any case is not tenable. The appellant relies upon statutory
provisions in support of its stand to transfer of land. The sweeping remarks that
the allegations are against the Government and the Board which consist of
Government functionaries; therefore, the matter requires to be investigated by CBI
are wholly untenable and such sweeping remarks against the Government and/or
the Board should not have been made. The functioning in the Government is by
different Officers and the working of the Executive has inbuilt checks and
balances. Therefore, merely because, permission has been granted by a
functionary of the State Government will not disclose a criminal offence. The High
Court has thus travelled much beyond its jurisdiction in directing investigations by
CBI in a matter of sale of property of the Deity. Still further, the High Court has
issued directions without their being any complaint to the local police in respect of
the property of the religious Trust.
16 (2008) 2 SCC 409
11
20. It may be kept in mind that the public order (Entry 1) and the police (Entry
2) is a State subject falling in List II of the VII Schedule of the Constitution. It is a
primary responsibility of the investigating agency of the State Police to investigate
all offences which are committed within its jurisdiction. The investigations can be
entrusted to Central Bureau of Investigation on satisfaction of the conditions as
specified therein only in exceptional circumstances as laid down in State of West
Bengal (supra) case. Such power cannot and should not be exercised in a routine
manner without examining the complexities, nature of offence and some time the
tardy progress in the investigations involving high officials of the State investigating
agency itself.
21. We find that the High Court has completely misdirected itself in directing the
Central Bureau of Investigation to take over investigation in a matter which relates
to the rights of the trustees to sell property of a religious Trust or Deity, giving rise
to civil dispute.
22. In view of the above, the appeal is allowed. The order of the High Court is
set aside and the writ petition is thus dismissed.
..….…………………………………….J.
[Dr. Dhananjaya Y. Chandrachud]
.…………………………………………J.
 [Hemant Gupta]
New Delhi
May 1, 2019.
12

Insurance claim against fire = it is not open to appoint another Surveyor till such time, it gets a report in its favour = Thus, we find that there was no valid reason for the Insurance Company not to accept the report of the surveyor- M/s Sunil J. Vora & Associates nor there is any proof that such report is arbitrary & excessive. There are no cogent reasons to appoint Surveyors time and again till such time one Surveyor gives a report which could satisfy the interest of the Insurance Company.. In fact, in the present case it is evident that the claim of Rs. 54,93,865/- was accepted by the surveyor- M/s Sunil J. Vora & Associates. The second surveyor- M/s ABM Engineers & Consultants accepted the claim in the sum of Rs. 24,76,585/-. The third surveyor - R.G. Verma recommended total repudiation of claim. It is the third Surveyor’s report which sub-served the interest of the Insurance Company which was made basis of repudiation of the claim of the Complainant on the same day, when the report was furnished. We find that in view of the judgment in Sri Venkateswara (supra), it is not open to appoint another Surveyor till such time, it gets a report in its favour. In fact, the appointment of the Surveyors was to repudiate the claim of the Complainant on one pretext or the other.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9668 OF 2014
M/s New India Assurance Co. Ltd. …… Appellant
vs.
M/s Luxra Enterprises Pvt. Ltd. & Anr. .…..Respondents
WITH
CIVIL APPEAL NOS. 4371-4372 OF 2015
M/s Luxra Enterprises Pvt. Ltd. & Anr .….. Appellants
vs.
M/s New India Assurance Co. Ltd. .……Respondent
J U D G M E N T
Hemant Gupta, J.
1. This order shall dispose of Civil Appeals filed under Section 23 of the
Consumer Protection Act, 19851
 preferred by both the parties against an
order passed by the National Consumer Disputes Redressal Commission2
against its order dated 01.08.2014 wherein, a sum of Rs. 54,93,865/- has
1 1985 Act
2 Commission
1
been awarded as compensation for loss suffered on account of damage by
fire to the Complainant, subject to the condition that the said amount will
be paid within 45 days by the Insurance Company otherwise it will carry
interest at the rate of 10 % per annum till its realisation.
2. For the facility of reference, the respondent in Civil Appeal No. 9668
of 2014 will be called hereinafter as the Complainant, whereas the
Appellant- New India Assurance Co. Ltd. will be called as Insurance
Company. Civil Appeal Nos. 4371-72 of 2015 are filed by the Complainant.
3. The Complainant is an Industrial Unit engaged in manufacture of
garments. The Complainant obtained a policy of insurance for the risk of
fire for the period 27.3.2000 to 26.3.2001 with the assured sum of Rs.
85,00,000/-. It was on 12.07.2000 at about 3.45 AM, the factory of the
Complainant was engulfed in fire. It is thereafter, the Complainant lodged
a claim for loss due to fire incident in its factory.
4. M/s R.N. Sharma & Co., was appointed as an investigator to conduct
a preliminary investigation by the Insurance Company. The preliminary
investigation report was submitted on 20.07.2000. It is thereafter, M/s
Sunil J. Vora & Associates was appointed as the Surveyor by the Head
Office of the Insurance Company on July 28, 2000. The said Surveyor
submitted detailed report and accepted the claim of the Complainant for
Rs. 54,93,865/-. Out of the said amount, Rs. 1,65,430.53 was the claim on
account of damage to building; Rs. 3,93,779.78 was the claim towards the
damage to the machinery and Rs. 49,44,657.67 was the claim towards the
damage to the stocks. The amount was rounded off to Rs. 54,93,865/-.
5. The Insurance Company issued a communication dated 09.04.2001
to the Complainant asking for certain information after the said report was
2
submitted to the Insurance Company on 12.02.2001. The information
sought is as under:-
“1. List of Machineries (copy of assets register)
 2. Loss and profit accounts
 3. Purchase details of raw materials
 4. Verified copy of Balance Sheet for last 2
years.
 5. Original copy of LC & LC with extended
date of expiry
 6. Details of Financial arrangements for
increasing the turn over.
 7. Clarify the status of insurable interest on
building.”
6. The Surveyor in his report has given loss to the machinery giving
details of the machinery damaged in fire and the amount admissible in
respect of its loss. The Insurance Company also communicated a letter to
its Senior Branch Manager on 26.09.2001 that the letter of credit dated
11.05.2000 of Singapore Branch of Bank of India was established for
Gurcharan Singh & Co. Pvt. Ltd., but the said letter of credit expired
without receipt of any document. It was also mentioned that the
Complainant is neither a beneficiary nor a notified party of said letter of
credit.
7. Subsequently, M/s ABM Engineers & Consultants was appointed as
the second Surveyor by the Insurance Company. The said Surveyor
accepted the loss of Rs. 24,76,585/- in its report dated 28.02.2002. The
second surveyor has taken into consideration stocks statement submitted
by the Complainant to Canara Bank on 30.4.2000, 31.05.2000 and
01.07.2000 respectively. Though, the Manager of Canara Bank is said to
have pointed out that these statements are like statutory requirements
but the surveyor brushed them aside for the reason that these documents
3
cannot be treated as documents for finalising the stock value. It was
further observed that if the stocks statement is to be referred to, there is
no reason as to why letter of credit could not be materialized. The relevant
extracts from the report of the second surveyor are as under:-
“(i) Stock statement as on 1.7.2000,
31.5.2000, 30.4.2000 submitted by insured to
bank.
These statements are just like statutory
requirement (Refer opinion of Canara Bank
Manager, 13B, Investigation verification). These
documents cannot be treated as document for
finalizing stock value. If we refer to the quantity in
these stock statements then there was no reason
why LC could not materialize. Further these
documents contradict with purchase invoices of
items purchased by Luxara Enterprises Pvt. Ltd.
From their vendors.”
8. The Insurance Company was still not satisfied by the report and
thereafter appointed Mr. R.G.Verma, a Chartered Accountant as its third
surveyor. The said surveyor recommended total repudiation of claim in its
report on 28.05.2002 under Clause 8 of the Insurance Policy on the ground
that there were enough valid circumstantial reasons on the part of the
Insured to manipulate the fire. It is after the said report furnished on
28.06.2002, the claim was repudiated by the Insurance Company on the
same day i.e. 28.6.2002, inter-alia, on the ground that the Complainant
had no export order and the letter of credit does not show the name and
address of the buyer. It is mentioned therein that as per stocks statement
furnished to Canara Bank on 05.07.2000, 34,800 shirts were ready as on
01.07.2000 and that the letter of credit was expiring on 09.07.2000.
Therefore, the Complainant did not explain as to why the said
consignment was not shipped on or before 01.07.2000. Another reason
4
given was that the letter of credit was alleged to have been extended up
to 08.08.2000 in favour of somebody else. Therefore, there was no reason
for extension of letter of credit when the goods were allegedly ready on
01.07.2000 and that the garment could not be exported without
endorsement of invoice by Apparel Export Promotion Council but no such
endorsement was obtained by the Complainant. The Surveyor further
gave another reason, that 104203 meters of fabric was purchased from
M/s S.V. Traders but the address given on the invoice and the challans
was not of fabric shop but that of a photocopy shop. Still further, another
reason communicated was that the letter of credit was opened by M/s
Sirdanwal Overseas of Ajay Verma who is facing a criminal case under
Sections 420, 406, 120(B) of IPC in FIR No. 98 dated 06.04.2002.
9. The Complainant in his complaint filed on 16.5.2002, has inter-alia
averred that he has taken a credit facility from Canara Bank to the tune of
Rs. 50,00,000/- and that the loan amount was disbursed in the months of
March and May, 2000. Such advance was secured by primary security of
stocks and goods lying in the factory of the Complainant apart from the
personal guarantee of the Directors of the Complainant and equitable
mortgage/residential house of one of the Directors and plant & machinery
installed at the above said factory as collateral security. The Bank also got
insured the factory building as well as the stocks from the Insurance
Company for which premium was paid by debiting the account of
Complainant by the Bank.
10. The grievance of the Complainant is that the Insurance Company
has appointed one surveyor after another. The first surveyor- M/s Sunil J.
Vora & Associates has accepted the damage preferred by the Complainant
5
to the extent of Rs. 54,93,865/- whereas, the second surveyor- M/s ABM
Engineers & Consultants reduced the amount to Rs. 24,76,585/- and the
third surveyor-R.G. Verma repudiated the total claim.
11. In respect of second survey report, it is pointed out that Shri B. S.
Aggarwal of the surveyor- M/s ABM Engineers & Consultants attended the
meeting in the office of the Complainant which was attended by the
Officers of the Insurance Company. The Complainant submitted a letter to
the Regional Manager of the Insurance Company as well as to the Branch
Office at Delhi apart from the Grievance Cell, Mumbai on 15.01.2002. Shri
B.S. Aggarwal communicated a letter dated 30.01.2002 pointing out that
the letter dated 15.01.2002 submitted by the Complainant was misleading
as the Complainant could not make available accounting records to the
Surveyor.
12. The Complainant again submitted a letter dated 18.3.2002 aggrieved
against the actions of the surveyor to the various officers of the Insurance
Company. The Complainant also pointed out that the Insurance Company
could not appoint one surveyor after another. It was open to the Insurance
Company to apply to the Insurance Regulatory and Development Authority
to appoint an independent Surveyor under Section 64 UM (3) of the
Insurance Act, 19383
 but the Insurance Company could not appoint one
surveyor after another till such time, it is successful in getting a report of
total repudiation of the claim of the Complainant. The relevant provisions
of the 1938 Act read as under:-
“(2) No claim in respect of a loss which has occurred in
India and requiring to be paid or settled in India equal
to or exceeding twenty thousand rupees in value on
any policy of insurance, arising or intimated to an
3 1938 Act
6
insurer at any time after the expiry of a period of one
year from the commencement of the Insurance
(Amendment) Act, 1968, shall, unless otherwise
directed by the Authority, be admitted for payment or
settled by the insurer unless he has obtained a report,
on the loss that has occurred, from a person who holds
a licence issued under this section to act as a surveyor
or loss assessor (hereafter referred to as "approved
surveyor or loss assessors) :
Provided that nothing in this sub-section shall be
deemed to take away or abridge the right of the
insurer to pay or settle any claim at any amount
different from the amount assessed by the approved
surveyor or loss assessor.
(3) The Authority may, at any time, in respect of any
claim of the nature referred to in sub-section (2), call
for an independent report from any other approved
surveyor or loss assessor specified by him and such
surveyor or loss assessor shall furnish such report to
the Authority within such time as may be specified by
the Authority or if no time limit has been specified by
him within reasonable time and the cost of, or
incidental to, such report shall be borne by the insurer.
(4) The Authority may, on receipt of a report referred
to in sub-section (3), issue such directions as he may
consider necessary with regard to the settlement of
the claim including any direction to settle a claim at a
figure less than, or more than, that at which it is
proposed to settle it or it was settled and the insurer
shall be bound to comply with such directions:
Provided that where the Authority issues a
direction for settling a claim at a figure lower than that
at which it has already been settled, the insurer shall
be deemed to comply with such direction if he satisfies
the Authority that all reasonable steps with due regard
to the question whether the expenditure involved is
not disproportionate to the amount required to be
recovered, have been taken with due dispatch by him:
 Provided further that no direction for the
payment of a lesser sum shall be made where the
amount of the claim has already been paid and the
Authority is of opinion that the recovery of the amount
paid in excess would cause undue hardship to the
insured:
Provided also that nothing in this section shall
relieve the insurer from any liability, civil or criminal,
to which he would have been subject but for the
provisions of this sub-section.”
7
13. In the written statement filed before the Commissioner, the
Insurance Company explained the reason for appointing another Surveyor
after the report of Surveyor- M/s Sunil J. Vora & Associates was submitted
on 01.02.2001. It was, inter-alia, asserted that quantum of loss has been
assessed without verifying and providing any documents and that the
clarification sought from the Surveyor has not led to any response. The
Insurance Company concluded the reasons for appointing another
Surveyor in para 3.9 of its reply which reads as under:-
“Respondent No.1 sought clarification from the
Surveyors as well as the insured on certain points
but neither the Surveyors nor the insured
submitted the clarification or the desired
documents. In the absence of the said
clarification/documents, Respondent No. 1 was not
able to ascertain the cost of the shirts. The
Surveyors had taken the value of the shirts at Rs.
235/- but it was not clear from where he had taken
the said value. On the other hand, the
Complainant had taken the order @ 5.9 US$ i.e.
Rs. 271/- and adding overhead expenses the cost
comes Rs. 295/- per shirt. The Preliminary
Surveyor in his report dated 20th July, 2000, also
did not give the basis of the estimate of loss at Rs.
75,00,000/-. The letters dated 11th May, 2001 was
written to the Preliminary Surveyor asking about
the basis of the figure of Rs. 75,00,000/- which was
not responded. This was followed by reminder
dated 28th June, 2001 which was also not
responded. The letters dated 11th May, 2001 and
28th June, 2001 is Annexure R-14 and R-15 hereto”.
14. Such are the only reasons available in the written statement as to
why another Surveyor was appointed. No other record has been furnished
for appointment of M/s ABM Engineers & Consultants, second surveyor on
22.08.2001. The Commission in its order held as under:-
8
“22. There is no evidence on record that the
appointment of Surveyor Nos. 2, 3 & 4 was with
the consent of the Head Quarters. After the
second Surveyor, there is no reasoning given as to
why third and fourth Surveyors were appointed.
This is an admitted fact that the fire broke out in
the premises of the complainant. All the first three
Surveyors spoke about this fact in one voice. Even
the Investigator/Fourth Surveyor, did not deny the
happening of incident and admitted in no
uncertain terms that shirts worth rupees few lakhs
must have been burnt. There can be no
conflictions on the point that some loss was
occurred to the complainant. Whether the Order or
LCs were fake or manipulated or the Order for
import of shirts could not be proved or Mr. Ajay
Verma was involved in a criminal case has got no
bearing on this case. There is no inkling on
evidence of record that Mr. Ajay Verma was
involved in this particular case.
23. It cannot be laid down as a rule of thumb that
the Surveyor cannot ask for other documents after
he has informed the complainant that the
documents are complete. There lies no rub.
24. Under these circumstances, we have no
hesitation to accept the second Surveyor, M/s Sunil
J. Vohra’s report. The same is partly accepted and
we allow the complaint and direct the Insurance
Company, OP1, to pay a sum of Rs. 54,93,865/- to
the complainant, within 45 days from the receipt
of this order, otherwise, it will carry interest @
10% p.a., till its realization. In view of peculiar
facts of this case, there is no order as to costs or
pendente lite interest.”
15. The learned counsel for the Appellant-Insurance Company argued
that the Commission has gravely erred in law in not examining the
question whether letter of credit was fake or manipulated or that the order
of import of shirts could not be proved or Mr. Ajay Verma was involved in a
criminal case as it was held that such facts have no bearing on this case.
Learned counsel for the Appellant-Insurance Company relies upon an
9
order passed by this Court as reported in Sri Venkateswara Syndicate
vs. Oriental Insurance Company Limited4 which case has examined
Section 64 UM of the 1938 Act to hold that there is no prohibition in the
Act for appointment of another Surveyor- M/s ABM Engineers &
Consultants by the Insurance Company except that the Insurance
Company has to record reasons for not accepting the report of the
Surveyor- M/s Sunil J. Vora & Associates. Therefore, the Insurance
Company has rightly appointed another Surveyor.
16. The Insurance Company relied upon newspaper report dated
09.05.2002 published in Punjab Kesari that the Delhi Police has arrested
three persons on the basis of forged documents duping exporters. It was
the said newspaper report which was made basis of appointing yet
another Surveyor. The relevant extract from the written statement reads
as under:-
“3.12 On 9th May, 2002, it was reported in the
“Punjab Kesari” newspaper that Delhi Police has
arrested a gang of three persons who had duped
the exporters of crores of rupees on the basis of
forged documents. It also came to the notice of
Respondent No. 1 that Mr. Ajay Verma of M/s.
Sirdanwal Overseas from whom, the Complainant
is alleged to have dealings for LC and procurement
of the export order had been arrested in a
cheating case in FIR No. 98 dated 6th April, 2002,
P.S. Chitranjan Park, under Sections 420/406/12B
of the Indian Penal Code. The newspaper report
dated 9th May, 2002 is Annexure R-25 hereto.
Respondent No. 1 appointed Shri R.G. Verma,
Chartered Accountant to conduct an investigation
of the claim. Shri R.G. Verma conducted the
detailed investigation and submitted his report
dated 28th May, 2002 in which he observed that
the claim was fraudulent. The report of Shri R.G.
Verma is Annexure R-26 hereto. The following
documents were collected by the investigator:-
4 (2009) 8 SCC 507
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i. List of bail applications dated 24th May, 2002.
ii. FIR NO. 98 dated 6th April, 2002.
iii. Application for request for judicial custody by
the Accused.
iv. Respondent No. 1 took the photographs of the
office of S.V. Traders which are Annexure R-27
hereto”.
17. On the other hand, learned counsel for the Complainant rebutted
the arguments raised and referred to communication dated 07.12.2001
addressed by the Head Office of the Insurance Company to its Delhi
Regional Office, inter-alia, to the facts that Head Office has appointed M/s
Sunil J. Vohra & Associates as the final Surveyor and that the Head Office
is unable to understand as to why and who has appointed M/s ABM
Engineers & Consultants as Surveyor. The extracts from the said letter
read as under: -
“07.12.2001
DELHI RO II
Kind Attn. : MR. S. MAMMAN, ASSTT. GEN.
MANAGER,
Re: Fire Claim under Policy No. 11/310830/99/9010
A/c
M/s. Luxra Enterprises Pvt. Ltd.
Date of Loss : 11/12.7.2000
We note from our record that based on your
request vide letter dt. 24.7.2000, HO had
appointed Sunil J. Vora & Associates as the Final
Surveyor and we have communicated the decision
to you vide our letter dt. 27.7.2000. we
understand that surveyor had already submitted
their report also.
We have received a bunch of papers dt.
20.11.01 from M/s ABM Engineers and Consultants
pertaining to this claim. We are unable to
understand what for they are appointed and who
has appointed them. Please note that once HO has
appointed a surveyor, you cannot appoint surveyor
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or investigator without consulting HO. Please let us
have your explanation to enable us to apprise
Management.
We note that correspondence by M/s. ABM
Engineers and Consultants are directly addressed
to the Senior Branch Manager only and copies are
seen forwarded to various higher offices. Kindly
inform us the current status of this claim also for
our records.”
18. Before considering the respective contentions of the parties, the
judgment in Sri Venkateswara (supra) is required to be examined. In
the said judgment, this Court has upheld the right of the Insurance
Company to appoint Surveyor but such right can be exercised for valid
reasons or if the report is found to be arbitrary and that Insurance
Company must give cogent reasons without which it is not free to appoint
the second Surveyor. The relevant extracts of the judgment read as under:
-
“33. Scheme of Section 64-UM, particularly of subsections (2), (3) and (4) would show that the
insurer cannot appoint a second surveyor just as a
matter of course. If for any valid reason the report
of the surveyor is not acceptable to the insurer
may be for the reason if there are inherent
defects, if it is found to be arbitrary, excessive,
exaggerated, etc., it must specify cogent reasons,
without which it is not free to appoint the second
surveyor or surveyors till it gets a report which
would satisfy its interest. Alternatively, it can be
stated that there must be sufficient ground to
disagree with the findings of surveyor/surveyors.
There is no prohibition in the Insurance Act for
appointment of second surveyor by the insurance
company, but while doing so, the insurance
company has to give satisfactory reasons for not
accepting the report of the first surveyor and the
need to appoint second surveyor.
xxx xxx xxx
35. In our considered view, the Insurance Act only
mandates that while settling a claim, assistance of
a surveyor should be taken but it does not go
further and say that the insurer would be bound by
whatever the surveyor has assessed or quantified;
if for any reason, the insurer is of the view that
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certain material facts ought to have been taken
into consideration while framing a report by the
surveyor and if it is not done, it can certainly
depute another surveyor for the purpose of
conducting a fresh survey to estimate the loss
suffered by the insured.
xxx xxx xxx
37. The option to accept or not to accept the
report is with the insurer. However, if the rejection
of the report is arbitrary and based on no
acceptable reasons, the courts or other forums can
definitely step in and correct the error committed
by the insurer while repudiating the claim of the
insured. We hasten to add, if the reports are
prepared in good faith, with due application of
mind and in the absence of any error or ill motive,
the insurance company is not expected to reject
the report of the surveyors”.
19. In view of above, the question to be examined is whether the
Insurance Company has reasons or there were inherent defects in the
survey report of Surveyor- M/s Sunil J. Vora & Associates or that such
report is arbitrary, excessive and exaggerated, before another Surveyor
could be appointed.
20. The Surveyor- M/s Sunil J. Vora & Associates was appointed by Head
Office of the Insurance Company. The Head Office of the Insurance
Company has communicated to the Regional/ Branch Office as to why
another Surveyor has been appointed. In view of said fact, the
appointment of another surveyor could not be justified when a conscious
decision has been communicated by the Head Office of not approving the
appointment of second surveyor.
21. Still further, the reasoning given by the local office is that the
Surveyor- M/s Sunil J. Vora & Associates has not clarified certain points
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when clarification was sought for. The said reason stands answered even
in the report of Surveyor- M/s ABM Engineers & Consultants. Such
surveyor has considered the report of the Canara Bank in respect of
stocks statement. Such stocks statement was brushed aside for the
reason that if said stocks statement was correct then as to why letter of
credit could not be materialised. The Complainant has explained that it
was on 15.06.2000, it has been communicated to the consignee to have
inspection of the stocks before exporting the consignment. The consignee
has not inspected the stocks which led to the extension of letter of credit
up to 08.08.2000. It was argued that letter of credit is to facilitate receipt
of money from the exporter and once the stock of the Complainant has
been verified by the Canara Bank, which had the first charge over the
property, therefore, such verification of stock could not be doubted by the
Insurance Company only for the reason that letter of credit could not be
materialised. The verification of the stocks by the Canara Bank which had
primary charge on the stocks could not be doubted in the manner, the
surveyor- M/s ABM Engineers & Consultants has reported.
22. Still further, it is explained in the affidavit that the letter of credit was
by M/s Sirdanwal Overseas which was endorsed to Gurcharan Singh
Company Pvt. Ltd. PTE Singapore. Therefore, the letter of credit was a
valid document which could not be said not to be genuine only on the
basis of reason that such letter of credit was not in favour of the
Complainant when the order was placed on the Complainant by the above
said Singapore based firm.
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23. Mr. Ajay Verma is an accused in FIR in which there is no allegation in
respect of export by the Complainant. The allegation against Ajay Verma
is of duping the exporters whereas, there is no such or similar allegation
against the Complainant. The Complainant has also averred that there
was endorsement by the Apparel Export Promotion Council, therefore
factually such assertion of the Insurance Company is incorrect.
24. Thus, we find that there was no valid reason for the Insurance
Company not to accept the report of the surveyor- M/s Sunil J. Vora &
Associates nor there is any proof that such report is arbitrary & excessive.
There are no cogent reasons to appoint Surveyors time and again till such
time one Surveyor gives a report which could satisfy the interest of the
Insurance Company.
25. In fact, in the present case it is evident that the claim of Rs.
54,93,865/- was accepted by the surveyor- M/s Sunil J. Vora & Associates.
The second surveyor- M/s ABM Engineers & Consultants accepted the
claim in the sum of Rs. 24,76,585/-. The third surveyor - R.G. Verma
recommended total repudiation of claim. It is the third Surveyor’s report
which sub-served the interest of the Insurance Company which was made
basis of repudiation of the claim of the Complainant on the same day,
when the report was furnished. We find that in view of the judgment in Sri
Venkateswara (supra), it is not open to appoint another Surveyor till
such time, it gets a report in its favour. In fact, the appointment of the
Surveyors was to repudiate the claim of the Complainant on one pretext
or the other.
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26. Thus, we do not find any illegality in the order passed by the
Commission. Consequently, Civil Appeal No. 9668 of 2014 is dismissed.
27. However, we find that the Commission has not granted interest on
the amount found due and payable to the Complainant. Therefore, Civil
Appeal Nos.4371-72 0f 2015 preferred by the Complainant are allowed.
The Complainant shall be entitled to the interest on the amount of Rs.
54,93,865/- at the rate of 6% per annum from the date of filing of petition
till the payment of the amount.
……………………...……………………………..J.
(Dr. Dhananjaya Y. Chandrachud)
…………………..………………..……………….J.
 (Hemant Gupta)
New Delhi
May 1, 2019
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