Whether the Respondent is entitled to refund of the licence fee and the differential amount for the period during which the unit was sealed. ? Apex court held that when there is no prior adjudication in favour of the Respondent and the Respondent was given an opportunity to show cause as to why the premises should not be sealed - when after considering the explanation submitted by the Respondent, the penalty was imposed on the Respondent and due to the failure of the payment of the amount of penalty, the premises were sealed - the respondent is not entitled for any refund of licence fee and differentaial amount during which the unit was sealed

Whether the Respondent is entitled to refund of the licence fee and the differential amount for the period during which the unit was sealed. ?

Apex court held that  when there is no  prior adjudication in favour of the Respondent and the Respondent was given an opportunity to show cause as to why the premises should not be sealed - when after considering the explanation submitted by the Respondent, the penalty was imposed on the Respondent and due to the failure of the payment of the amount of penalty, the premises were sealed - the respondent is not entitled for any refund of licence fee and differentaial amount during which the unit was sealed 


Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 7951 of 2019
(Arising out of SLP (C) No.4647 of 2019)
THE STATE OF BIHAR & ORS.
.... Appellant(s)
Versus
M/S RIGA SUGAR CO. LTD.
 …. Respondent (s)
With
Civil Appeal No. 7952 of 2019
(Arising out of SLP (C) No.4664 of 2019)
THE STATE OF BIHAR & ORS.
.... Appellant(s)
Versus
M/S WELCOME DISTILLERIES PRIVATE LIMITED.
 …. Respondent (s)
Civil Appeal No. 7957 of 2019
(Arising out of SLP (C) No.3593 of 2019)
THE STATE OF BIHAR & ORS.
.... Appellant(s)
Versus
M/S SHIPRA BEVERAGE PRIVATE LIMITED.
 …. Respondent (s)
Civil Appeal No. 7958 of 2019
(Arising out of SLP (C) No.3595 of 2019)
THE STATE OF BIHAR & ORS.
.... Appellant(s)
Versus
M/S K.M. SUGAR MILLS LIMITED. …. Respondent (s)
1 | P a g e
J U D G M E N T
L. NAGESWARA RAO, J.
1. These Appeals arise from a judgment of the High
Court of Judicature at Patna in the Writ Petitions filed by
the Respondents. The Writ Petitions were allowed by the
High Court and the Appellant- State was directed to refund
the licence fee and the differential amount recovered from
the Respondents for the period during which their premises
were unlawfully sealed/closed.
As the facts of each case are different, we proceed to
deal with the Appeals separately.
Civil Appeal No. 7951 of 2019
(Arising out of SLP (C) No.4647 of 2019)
(M/S RIGA SUGAR CO. LTD.)
2. A tender notice dated 31.01.2014 was issued by
the Department of Excise and Prohibition, Government of
Bihar, inviting applications for grant of Exclusive
Privilege for manufacture and supply of country liquor in
PET bottles. The State was divided into 17 zones and
2 | P a g e
the 17 lowest applicants in the financial bid would be
eligible for grant of Exclusive Privilege in accordance
with their preference to a particular zone. By an order
dated 04.03.2014, Exclusive Privilege for manufacturing
and supply of country liquor for zone 11 constituting the
districts of Muzzafarpur, Sitamarhi and Sheohar for the
period between 01.04.2014 to 31.03.2019 was awarded
to M/s Riga Sugar Company Limited (hereinafter, ‘the
Respondent’). The base rate fixed for supply of 200 ML
PET bottle of country liquor was fixed at Rs.5.78/-. The
difference between the base price and the bid price (in
this case Rs.4.07/-) calculated on the Minimum
Guaranteed Quantity (MGQ) was payable by the supplier
to the Government in advance for a period of every
three months i.e. on 15th March, 15th June, 15th
September and 15th December. As per the tender
conditions the supplier is required to obtain a licence in
Form 27 for manufacture and supply of country liquor to
Bihar State Beverages Corporation Limited (BSBCL) at
the rate of Rs.1/- per litre calculated on the Minimum
Guaranteed Quantity.
3 | P a g e
3. The Respondent was required to supply
5,25,220.786 LPL country liquor of 60 degree strength
per month. After issuance of a letter of grant on
04.03.2014, a liquor licence was obtained by the
Respondent. Pursuant thereto, the Respondent
established a bottling plant at Muzzafarpur and
commenced production and supply of country liquor to
BSBCL on 01.02.2015. As the Respondent was not
supplying the prescribed quantity of country liquor to
BSBCL, a warning was issued to ensure that the
prescribed quantity of country liquor was supplied. On
09.12.2015, a penalty of Rs.1 lakh was levied on the
Respondent for non-supply of minimum quantity of
country liquor. Pursuant to the inspection report dated
13.12.2015, the premises of the Respondent was sealed
by the Superintendent of Excise, Muzzafarpur for nonsupply of minimum quantity of country liquor.
4. The State of Bihar announced a New Excise Policy
and imposed total ban on consumption of alcohol in the
4 | P a g e
State in a phased manner. The New Excise Policy which
was announced on 21.12.2015 contemplated that no
licence for manufacturing, trading and consumption of
country liquor shall be granted from 01.04.2016. The
respondent questioned the order dated 13.12.2015 by
which its premises was sealed by filing a writ petition.
Lack of opportunity to the Respondent before the order
of sealing was passed prompted the High Court to allow
the Writ Petition by its judgment dated 25.01.2016. In
the meanwhile, the licence of the Respondent was
suspended for a period of 90 days by an order dated
20.01.2016 issued under Section 42 (3) of the Bihar and
Orissa Excise Act, 1915 (for short “the Act”) as the
liquor supplied by the Respondent was found to be of
higher strength of 70.8 degrees UP instead of required
strength of 60 degree UP. Another Writ Petition was filed
by the Respondent questioning the order of suspension
dated 20.01.2016 which was dismissed as withdrawn in
view of the order of the Excise Commissioner, Bihar
dated 04.02.2016 by which the earlier order of
suspension dated 20.01.2016 was withdrawn. A
5 | P a g e
notification was issued on 04.02.2016 directing that
production, sale and utilization of all country liquor shall
be completely prohibited in the State of Bihar w.e.f.
01.04.2016 and that the remaining stocks of all country
liquor lying in the outlets as on 31.03.2016 shall be
destroyed.
5. The Respondent submitted a representation
seeking refund of the licence fee and differential amount
for the period between 13.12.2015 to 04.02.2016 during
which its manufacturing unit was closed. The
Respondent quantified the amount of refund at
Rs.1,29,42,928/-. On 31.03.2016, a notification was
issued implementing the New Excise Policy by imposing
an absolute ban on manufacturing, bottling, distribution,
sale, purchase, possession and consumption of country
liquor w.e.f. 01.04.2016.
6. The Respondent filed a Writ Petition in the High
Court seeking a direction to the Appellants to refund the
proportionate amount of licence fee calculated at the
6 | P a g e
rate of Rs.1/- per LPL on the Minimum Guaranteed
Quantity of country liquor and the differential amount
calculated on the Minimum Guaranteed Quantity of
country liquor for the period between 13.12.2015 and
04.02.2016.
7. The High Court heard the Writ Petition filed by the
Respondent along with three other Writ Petitions. It was
held that there was an earlier adjudication that the
sealing of the premises was wholly unjust and improper
and hence, the Respondent and other writ petitioners
were entitled for refund of the licence fee and the
differential amount as prayed for. The Appellants,
therefore, were directed to refund the amount of licence
fee and the differential amount recovered from the
Respondent for the period during which the
manufacturing unit was sealed. Another reason for grant
of relief by the High Court is that the manufacturers
were not given an opportunity before orders of
suspension and cancellation of licenses were passed.
There was a further direction that the Appellant should
7 | P a g e
consider the claims of the Respondent and the other Writ
Petitioners regarding compensation for the value of the
furnished raw material which could not be liquidated by
31.03.2016 due to the unlawful closure of the
manufacturing premises.
8. It was contended by Mr. Maninder Singh, learned
Senior Counsel appearing for the Respondent that the
tender conditions were incorporated in the Exclusive
Privilege and the licence was granted to the Respondent
as per the scheme of the Act. The Exclusive Privilege in
relation to the activities of the Respondent was under
the supervision and control of the State. The employees
of the Excise Department are deployed on the
manufacturing plant to ensure that the tender conditions
are complied with scrupulously. He submitted that the
premises of the Respondent was sealed on 13.12.2015
for non-supply of the prescribed quantity of country
liquor for the month of December, 2015 despite the
warning issued on 23.11.2015 and a penalty levied on
09.12.2015. Another ground for sealing the premises
8 | P a g e
was violation of the condition to maintain required buffer
stock. During the pendency of the Writ Petition filed
against the order dated 13.12.2015 by the Respondent
in the High Court, the licence of the Respondent was
suspended on 20.01.2016 on the basis of an inspection
report of the Excise Chemical Engineer in which it was
found that the strength of the liquor was higher than the
prescribed 60 degree UP. Though the sealing order was
set aside by the High Court on 25.01.2016, the premises
were de-sealed only on 04.02.2016, on which date the
order of suspension was withdrawn. Mr. Singh
submitted that the order of sealing dated 13.12.2015
has no connection with the order of suspension dated
20.01.2016 which was for a different violation of the
conditions of licence. He relied upon Clause 22 of the
licence to submit that the Respondent is not entitled for
any compensation. In this regard, he also referred to
Section 42 (4) of the Bihar Excise Act according to which
the holder of a licence shall not be entitled for any
compensation for its cancellation or its suspension. The
said provision further contemplates that the licensee is
9 | P a g e
not entitled for any refund of any fee or deposit made. It
was further submitted by Mr. Singh that the High Court
committed an error in taking up all the four Writ Petition
together, especially when the facts are different. He also
questioned the finding of the High Court that the showcause notice is necessary before an order of suspension
was passed.
9. Mr. Navaniti Prasad Singh, learned Senior Counsel
appearing for the Respondents submitted that the
sealing order dated 13.12.2015 was set aside by the
High Court by a judgment dated 25.01.2016 in CWJC
No.1364 of 2016. The judgement has become final and
necessarily the Respondent is entitled for refund of the
licence fee and the deferential amount for the period
between 13.12.2015 and 20.01.2016. The order dated
20.01.2016 by which the licence of Respondent was
suspended was not brought to the notice of the High
Court by the Appellants when CWJC 1364 of 2016 was
heard. He submitted that in this case no notice was
given before the order of suspension was passed. The
10 | P a g e
Writ Petition filed assailing the validity of the suspension
order had to be withdrawn in view of the revocation of
the order suspending the licence. He argued that the
Respondent is entitled for refund of the licence fee and
the differential amount even for the period between
20.01.2016 and 04.02.2016.
10. The point that arises for our consideration in this
case is whether the Respondent is entitled to refund of
the licence fee and the differential amount for the period
during which the unit was sealed. Admittedly, the
closure for the period between 13.12.2015 and
20.01.2016 was the subject matter of the judgement in
CWJC No.1364 of 2016 which was allowed by the High
Court and the judgment has become final. There cannot
be any dispute that the Respondent is entitled for the
refund of the licence fee and the differential amount in
respect of the period between 20.01.2016 and
04.02.2016 covered by sealing order. We are also of the
opinion that the Respondent is entitled for refund of the
licence fee and differential amount even for the period of
11 | P a g e
suspension i.e. 20.01.2016 to 04.02.2016 for the reason
that no show-cause notice was given before the order
was passed. Since orders of cancellation and suspension
are punitive, the licensee should be given an opportunity
before the licence is cancelled or suspended.1
Therefore, the judgment of the High Court is affirmed.
Appeal is dismissed.
Civil Appeal No. 7952 of 2019
(Arising out of SLP (C) No.4664 of 2019)
(M/S Welcome Distilleries Private Limited).
11. M/s Welcome Distilleries Private Limited, the
Respondent herein was granted Exclusive Privilege for
manufacture and supply of country liquor at the rate of
Rs.4.32/- per 200 ml. PET bottle for Zone-4, constituting
the districts of Rohtas and Kaimur for the period
between 01.04.2014 to 31.03.2019. The Respondent
established a bottling plant and commenced production
and supply of country liquor to BSBCL on 01.02.2015.
During an inspection conducted on 08.05.2015, it was
1 Thakko Choudhary vs. The State of Bihar, 1971 PLJR 199; Ramnath
Prasad
 vs. The Collector of Darbhanga and Ors., AIR 1955 Pat 345
12 | P a g e
found that the Respondent was not manufacturing
country liquor as per the Minimum Guaranteed Quantity.
A notice was issued to the Respondent on 15.07.2015 to
deposit the advance of the differential amount upto that
date as the Respondent failed to deposit earlier
instalments of the differential amount. Consequently,
the licence of the Respondent was suspended on
17.07.2015. The suspension was revoked on 20.07.2015.
During the inspection conducted on 07.10.2015, it was
discovered that the alcohol was substandard as the
strength was higher than the prescribed strength of 60
degrees UP. The premises was sealed on 19.12.2015
and the Respondent received a show-cause notice dated
24.10.2015 to which he replied on 04.01.2016. After
considering the response of the Respondent, an order
was passed on 17.01.2016 suspending the licence which
was challenged before the Board of Revenue. The Board
of Revenue stayed the order of suspension on
01.02.2016. Thereafter, the premises were un-sealed on
09.02.2016. The unit was closed for five days between
29.02.2016 to 04.03.2016 and for 15 days between
13 | P a g e
17.03.2016 to 31.03.2016 for non-payment of the
outstanding amount and for short supply of country
liquor. The New Excise Policy was implemented by a
total ban on manufacturing of country liquor w.e.f.
31.03.2016.
12. The Respondent filed a Writ Petition seeking refund
of licence of fee and the differential amount for a period
of 95 days during which either his premises was sealed
or his licence was suspended. It was contended on
behalf of the Respondent that the repeated sealing of
the premises and the suspension of the licence was
illegal.
13. The High Court allowed the Writ Petition filed by the
Respondent and directed refund as claimed for. The
main reason given by the High Court for allowing the
Writ Petitions was there was a prior adjudication that the
sealing orders were illegal, is not applicable to the
Respondent. According to the learned Senior Counsel for
the State, the orders of sealing of the premises and the
14 | P a g e
suspension of the licence were not the subject matter of
any earlier adjudication by the High Court. On behalf of
the Respondent, it was submitted that the repeated
orders of sealing of the premises and the suspension of
the licence would show the mala fide intention of the
State. He brought to our notice that the order passed by
the Board of Revenue on 01.02.2016, staying the
suspension order dated 17.01.2016, in spite of which the
premises continued to be sealed thereafter.
14. The sealing of the premises and suspension of
licence of the Respondent was due to the non-payment
of the required instalment of the differential amount and
manufacturing of substandard country liquor. The order
of suspension of the licence dated 17.01.2016 was
stayed by the Board of Revenue on 01.02.2016. The
State filed a Review Application before the Board of
Revenue which was dismissed on 17.02.2016.
Immediately thereafter, the premises were un-sealed on
19.02.2016. The closure of the premises, according to
the Appellant, for five days between 29.02.2016 and
15 | P a g e
04.03.2016 was due to the non-deposit of the
outstanding differential amount and from 17.03.2016 to
31.03.2016 was due to short supply of country liquor are
justified.
15. As the closure of the premises of Respondent was
due to the violation of the tender conditions and the
conditions of licence, the High Court committed an error
in allowing the Writ Petitions filed by the Respondent.
Admittedly, there was no prior adjudication in respect of
the sealing of the premises or suspension of the licence
in favour of the respondent. Therefore, the reason given
by the High Court for holding that the Respondent is
entitled for refund i.e., on the ground of prior
adjudication is not correct. The High Court erred in
holding that no show-cause notices were issued before
the orders of suspension and sealing of the premises
were passed. The notices given on 15.07.2015,
24.12.2015, 25.02.2016 and 26.03.2016 would indicate
that the Respondent was given sufficient opportunity.
Moreover, in its response to show-cause notice dated
16 | P a g e
24.12.2015, the Respondent submitted his explanation
in which there was an admission of production of substandard country liquor. The judgment of the High Court
cannot be sustained and is set aside.
Civil Appeal No. 7957 of 2019
(Arising out of SLP (C) No.3593 of 2019)
(M/S Shipra Beverage Private Limited).
16. M/s Shipra Beverage Private Limited, the Respondent
herein was granted Exclusive Privilege for manufacture
and supply of country liquor in zone-5 constituting Gaya
and Aurangabad districts. An inspection was conducted on
04.01.2016 during which it was found that there is a deficit
stock and there was violation of Clauses 2(d) (iii) and
Clause 2(d) (ii) (f) of the letter of grant and Clause 9(f) of
the Licence. A show-cause notice was issued to the
Respondent on 27.01.2016. In view of the aforesaid
irregularities, the licence of the Respondent was
suspended under Section 42 of the Bihar Excise Act on
02.02.2016. Thereafter, the licence was cancelled on
13.02.2016. The Respondent filed CWJC No.2704 of 2016.
The High Court set aside the order dated 13.02.2016 by its
judgment dated 20.04.2016.
17 | P a g e
17. The complaint of the Respondent is that the
manufacturing unit stood closed between 02.02.2016 and
31.03.2016 due to suspension and cancellation of the
licence. The orders were challenged successfully in the
High Court. The Respondent filed a Writ Petition seeking
refund of the licence fee and the differential amounts for
the period of closure between 02.02.2016 and 31.03.2016.
18. As the suspension of the licence of the Respondent
and cancellation of the licence have been declared illegal
by the High Court by its judgment dated 20.04.2016 in
CWJC No.2704 of 2016, the Respondent is entitled for the
relief granted by the High Court. The Appeal is dismissed.
Civil Appeal No. 7958 of 2019
(Arising out of SLP (C) No.3595 of 2019)
(M/S K.M. SUGAR MILLS LIMITED).
19. M/s K.M. Sugar Mills Limited, the Respondent-herein
was a successful bidder for manufacturing and supply of
country liquor for Zone-10, constituting districts of East
Champaran and West Champaran for the period from
01.04.2014 to 31.03.2019. An inspection was conducted on
27.05.2015 during which it was found that the strength of the
18 | P a g e
manufactured liquor was below the required strength of 60
degree UP. A notice was issued on 27.05.2015 by which the
Respondent was directed to show cause as to why his licence
should not be terminated for causing huge loss to the
Government. The Respondent was also directed to explain
as to why a fine of Rs.4,51,08,493/- should not be imposed
on him for not maintaining the prescribed strength of 60
degree UP and for illegally manufacturing excess liquor. The
Respondent submitted its explanation on 11.06.2015 and
01.07.2015. After considering the explanation submitted by
the Respondent, the Excise Commissioner imposed a penalty
of Rs.4,51,08,493/- under Section 42 (g) (i) of the Act. As the
Respondent failed to pay the penalty amount, the premises
were sealed on 22.02.2016. As stated above, the New Excise
Policy came into force on 31.03.2016, and the grievance of
the Respondent in the Writ Petition was that the sealing of
the premises for the period between 02.02.2016 to
31.03.2016 is illegal. Therefore, the Respondent is entitled
for refund of licence fee and the differential amount. The
High Court failed to notice that there is no prior adjudication
in favour of the Respondent and the Respondent was given
an opportunity to show cause as to why the premises should
not be sealed. After considering the explanation submitted
19 | P a g e
by the Respondent, the penalty was imposed on the
Respondent and due to the failure of the payment of the
amount of penalty, the premises were sealed.
20. In view of the above, the Civil Appeal No. 7958 of 2019
arising out of SLP (C) No. 3595 of 2019 is allowed.
All the Appeals are disposed of accordingly.
 ..…................................J.
 [L. NAGESWARA RAO]
 ..…................................J.
 [HEMANT GUPTA]
New Delhi,
October 18, 2019.
20 | P a g e

Sc.482 - Quashing of criminal case = When there is not even a whisper in the complaint that the present appellant, i.e., accused No. 4 was fully aware that accused No. 1 was not the sole beneficiary by inheritance and that the property had devolved upon the complainant and her sisters. Also there is nothing to show that knowing this he has collusively entered into the lease agreement with accused No. 1, by creating a false and fabricated will. Though, there is a mention with regard to conspiracy, but there is not even a suggestion with regard to manner of such conspiracy. - No criminal complaint is maintainable and is liable to be quashed.

Sc.482 - Quashing of criminal case = When there is not even a whisper in the complaint that the present appellant, i.e., accused No. 4 was fully aware that accused No. 1 was not the sole beneficiary by inheritance and that the property had devolved upon the complainant and her sisters. Also there is nothing to show that knowing this he has collusively entered into the lease agreement with accused No. 1, by creating a false and fabricated will. Though, there is a mention  with   regard  to  conspiracy,  but there  is   not  even  a suggestion with regard to manner of such conspiracy. - No criminal complaint is maintainable and is liable to be quashed.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1586   OF 2019
(arising out of S.L.P.(Crl.) No. 9156 of 2017)
M. SRIKANTH                                        .... APPELLANT(S)
                                         
                              VERSUS
STATE OF TELANGANA AND ANR.          .... RESPONDENT(S)
WITH
CRIMINAL APPEAL Nos.1587­1588   OF 2019
(arising out of S.L.P.(Crl.) Nos. 9160­9161 of 2017)
J U D G M E N T
B.R. GAVAI, J.
     Leave granted in both the Special Leave Petitions.
 
2. Both these appeals arise out of the common Judgment
and   Order   passed   by   the   single   Judge   of   High   Court   of
Judicature at Hyderabad for the State of Telangana and the
State of Andhra Pradesh dated 01.06.2017.
2
3. The   criminal   appeal   arising   out   of   S.L.P.   (Crl.)   No.
9156 of 2017 filed by M. Srikanth, the original accused No. 4,
challenges that part of the order by which the single Judge of
the High Court has rejected his application under Section 482 of
the   Cr.P.C.   for   quashing   the   proceedings   in   Crime   No.
311/2010   of   P.S.,   Central   Crime   Station,   Hyderabad.     The
criminal appeals  arising out of  S.L.P. (Crl.) Nos. 9160­9161 of
2017 at the instance of the original complainant challenge that
part of the order vide which the single Judge of the High Court
has quashed the complaint qua accused Nos. 5, 6, 7, 8 and 9.
4.  The facts, in brief, giving rise to the present appeals
are as under:
The parties are referred to herein as they are arrayed
in the original complaint. The Respondent No. 2, Fatima Hasna,
in the criminal appeal arising out of S.L.P. (Crl.) No. 9156 of
2017 (hereinafter referred to as “the complainant”), is the sister
of accused No. 1, Akramuddin Hasan.   The complainant had
filed a private complaint against nine persons including accused
No. 1.  The allegations in the said complaint in a nutshell is that
the house bearing No. 3­5­1102 at Narayanaguda, Hyderabad,
originally   belonged   to   Afzaluddin   Hassan,   the   father   of   the
3
complainant,   who   died   on   28.05.1996.   Afzaluddin   Hassan,
possessed the same upon death of his  mother, Khairunnisa
Begum Saheba as per the oral gift dated 12.12.1966 and deed of
confirmation   of   the   said   oral   gift.   It   was   the   case   of   the
complainant, that upon death of her father, Afzaluddin Hassan,
the said property was inherited by her as well as her three
sisters and accused No. 1, her brother.  It is further averred in
the complaint, that her father had entered into a development
agreement   on   25.05.1989   with   M/s   Banjara   Construction
Company Pvt. Ltd. However, the same was cancelled during his
lifetime.  It is further averred by her that after the death of her
father, accused No. 3, Abid Rassol Khan, tried to trespass into
the property and for that on her complaint, Crime No. 159/1996
came to be registered for the offence punishable under Sections
448 and 380 of the IPC on 14.06.1996.
5. It is further averred by her that, thereafter, she came
to know about the existence of a document thereby assigning
the rights by M/s Banjara Construction Company Pvt. Ltd. in
favour   of   M/s   NRI   Housing  Company   Pvt.   Ltd.,  represented
through accused No. 3, Abid Rasool Khan. For the said incident
another   complaint    vide  Crime   No.   177/1996,   came   to   be
4
registered  for the offence punishable under Sections 418 and
420 read with Section 120­B of the IPC against seven persons
including M/s  Banjara Construction  Company Pvt. Ltd. and
accused No. 3 in the present case. With regard to the said cause
of   action,   the   complainant   had   also   filed   Original   Suit   No.
1989/1996  against accused No. 3 and others for permanent
injunction.   The   complainant’s   sisters   had   filed   O.S.   No.
1403/1999  against M/s Banjara Construction Company Pvt.
Ltd.   of   which   accused   No.   3,   Abid   Rasool   Khan,   was   the
Managing   Director.   According   to   the   complainant,   certain
interim orders were also passed in the said original suits.
6. It   is   further   the   case   of   the   complainant   in   the
complaint, that her brother accused No. 1, Akramuddin Hasan,
who had falsely created a will in Urdu purported to be executed
by their paternal grandmother, Khairunnisa Begum Saheba, in
favour of their parents Afzaluddin Hassan and Liaquathunnisa
Begum for their lifetime and vested remainder to accused No. 1.
It is the case of the complainant, that the said will is registered
and said to have been executed on 02.04.1950. Further, it is the
case, that accused No. 1 had also created another forged and
fabricated document styled as deed of confirmation (Hiba Bil
5
Musha)   dated   08.03.1990  vide  which   the   property   is   orally
gifted to accused No. 1 on 29.08.1989 and also handed over
physical possession thereof.
7. It is further the case of the complainant, that accused
No. 1, posing himself to be the owner of the premises, on the
basis of the alleged oral will and deed of confirmation, created a
registered   lease   on   01.12.2008,   bearing   document   No.
3107/2008 permitting  accused No. 4 to sub­lease the said land
in favour of accused No. 5, Hindustan Petroleum Corporation
Ltd.   (“HPCL”).   Accused   No.   6   and   accused   No.   9   are   the
employees/officers of accused No. 5 ­ HPCL whereas, accused
Nos. 7 and 8 are the attesting witnesses. On the basis of the
said complaint, the Chief Metropolitan Magistrate  directed the
registration of an FIR on 24.11.2010.
8. It appears, that various criminal petitions came to be
filed before the High Court. Criminal Petition No. 6047/2013
was filed by accused No. 7, Khaja Mohiuddin and accused No.
8, G. V. Prasad. Criminal Petition No. 6064/2013 came to be
filed by accused No. 3, Abid Rasool Khan. Criminal Petition No.
6609/2013 came to be filed by accused No. 4, M. Srikanth, who
is the appellant in the criminal appeal arising out of  SLP (Crl.)
6
No. 9156/2017. Criminal Petition No. 8743/2013 was filed by
accused No. 5 ­ HPCL and its officers, accused No. 6, S.K. Srui
and accused No. 9, R. Umapathi. By the impugned Order, the
High Court allowed the Criminal Petitions of all the applicants
except accused Nos. 3 and 4.
9. Being   aggrieved   by   the   dismissal   of   his   petition,
accused No. 4, so also the original complainant, being aggrieved
by the impugned Order by which the petitions of accused Nos.
5, 6, 7, 8 and 9 have been allowed, have approached this Court.
10. We have heard Mr. D. Rama Krishna Reddy, learned
counsel appearing on behalf of the appellant, M. Srikanth, and
Mr. Shakil Ahmed Syed, learned counsel appearing on behalf of
the complainant. We have also heard Mr. K. M. Nataraj, learned
Additional Solicitor General, appearing on behalf of the original
accused No. 5 ­ HPCL  and its  officers/employees, accused Nos.
6 and 9.
11. The   learned   counsel   for  the   original   accused   No.   4
submitted, that the only role attributed to the said accused in
the complaint is that a lease deed was executed in his favour by
7
accused No. 1, showing himself to be the absolute owner of the
property in question; whereas, the property was owned by the
complainant and her three sisters along with accused No. 1.  It
is further submitted, that the entire allegations of fabrication so
as to  show that the  property belongs to accused No. 1 are
against accused no. 1.  It is submitted that accused No. 4, on
the basis of the advertisement issued by accused No. 5 – HPCL
for installation of a petrol pump, had applied and after being
successful in the competition had obtained the land in question
on lease from accused No. 1.   He submitted, that as per the
terms   and   conditions   for   grant   of   the   said   outlet,   he   was
required to get the land on long term lease and sub­lease the
same to accused No. 5 – HPCL.  It is submitted, that even taking
the complaint at its face value, there are no averments which
would   show   that   accused   No.   4   had   any   role   to   play   in
fabrication of the document which bestowed the title on accused
No.   1.   It   is   further   submitted,   that   there   are   various   civil
proceedings pending amongst the complainant, accused No. 1
and their sisters so also the other parties. Accused No. 4 is not
at all concerned with the same. 
8
12. It is further submitted, that as a matter of fact, the
case of accused No. 4 could not have been distinguished from
the   case   as   against   accused   Nos.   5,   6,   7,   8   and   9.     It   is
submitted,   that   applying   the   same   logic,   which   the   learned
Judge of the High Court had applied while quashing the case
against the said accused, the case against the present accused
No. 4 also ought to have been quashed. It is submitted that the
continuation of criminal proceedings against accused No. 4, the
appellant herein, would be nothing else but an abuse of the
process of law.
13. Per contra, Mr. Shakil Ahmed Syed, learned counsel
appearing on behalf of the private complainant, submitted that
the High Court has rightly dismissed the petition of accused
No. 4.  It is submitted, that accused No. 4 in order to deprive
the benefits of the property to the complainant had got the lease
deed executed in his favour from accused No. 1 knowing very
well that the claim of accused No. 1 was based on fabricated
document(s).   He further submitted, that the High Court had
also erred in allowing the petitions of accused Nos. 5, 6, 7, 8
and 9 and, therefore, the order to the extent that it quashes the
criminal proceedings qua them also needs to be set aside.
9
14. Mr. K.M. Nataraj, learned Additional Solicitor General,
submitted   that   accused   Nos.   5,   6   and   9   have   been
unnecessarily   dragged   in   the   said   criminal   litigation.   It   is
submitted that accused No. 5 ­ HPCL is a public undertaking
and accused Nos. 6 and 9 are its officers.  It is submitted that
the High Court has rightly arrived at a finding that there was no
material against them and quashed the criminal proceedings
qua them.
15. This Court, in the case of  State of Haryana and Ors.
vs.   Bhajan   Lal   and   Ors.1
  after   considering   all   its   earlier
judgments, has laid down principles which are required to be
taken into consideration by the High Court while exercising its
jurisdiction under Section 482 of the Cr.P.C. for quashing the
proceedings. It   will   be   relevant   to   refer   to   the   following
observations of this Court in Bhajan Lal (supra):
 “102.  In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
the principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482
of the Code which we have extracted and reproduced above,
we   give   the   following   categories   of   cases   by   way   of
illustration wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise to
1 1992 Supp (1) SCC 335
10
secure the ends of justice, though it may not be possible to
lay   down   any   precise,   clearly   defined   and   sufficiently
channelised and inflexible guidelines or rigid formulae and
to give an exhaustive list of myriad kinds of cases wherein
such power should be exercised.
(1)   Where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2)  Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not
disclose   a   cognizable   offence,   justifying   an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3)  Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of
the same do not disclose the commission of any offence
and make out a case against the accused.
(4)   Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non­cognizable
offence, no investigation is permitted by a police officer
without   an   order   of   a   Magistrate   as   contemplated
under Section 155(2) of the Code.
(5)  Where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of
which   no   prudent   person   can   ever   reach   a   just
conclusion   that   there   is   sufficient   ground   for
proceeding against the accused.
(6)  Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under
which   a   criminal   proceeding   is   instituted)   to   the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned   Act,   providing   efficacious   redress   for   the
grievance of the aggrieved party.
11
(7)  Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted   with   an   ulterior   motive   for   wreaking
vengeance on the accused and with a view to spite him
due to private and personal grudge.”
16. It could thus be seen, that this Court has held, that
where the allegations made in the FIR or the complaint, even if
they are taken at their face value and accepted in their entirety
do not prima facie constitute a case against the accused, the
High   Court   would   be   justified   in   quashing   the   proceedings.
Further,   it   has   been   held   that   where   the   uncontroverted
allegations in the FIR and the evidence collected in support of
the same do not disclose any offence and make out a case
against the accused, the court would be justified in quashing
the proceedings.
17. Let us consider the case of the complainant on its face
value without going into the truthfulness or otherwise thereof.
It is the case of the complainant, that the property originally
belonged to her grandmother.  After her death, it devolved upon
her   father,   Afzaluddin   Hassan   and   after   his   death   on
28.05.1996,   it   devolved   upon   accused   No.   1   and   his   three
sisters,   namely,   Karima   Siddiqua,   Saleha   Asmatunnisa   and
Sadika   Khairunnisa.   Their   father   had   entered   into   a
12
development   agreement   with   M/s   Banjara   Construction
Company Pvt. Ltd., however, the same was cancelled during his
lifetime. After the death of their father on 28.05.1996,  accused
No. 3 tried to trespass into the property for which, on the basis
of her complaint a crime was registered. That the said M/s
Banjara Construction Company Pvt. Ltd. had executed some
document alleging assignment of its rights in favour of M/s NRI
Housing Company Pvt. Ltd. of which accused No. 3, Abid Rasool
Khan was the Managing Director. In respect of the same action,
Crime No. 177/1996 had been registered at the instance of the
complainant. With respect to the said transaction, two original
suits were already filed, one by the complainant and another by
her sisters.
18. It is further the case of the complainant, that  accused
No.1 created a will in Urdu purported to be executed by her
grandmother bequeathing the property in favour of her parents,
namely,  Afzaluddin   Hassan   and   Liaquathunnisa   Begum   for
their lifetime and vesting the remainder to accused No. 1.  The
said will is created on a non­judicial stamp paper of Nizamat
Jung   and   has   been   allegedly   executed   on   02.04.1950.
According to the complainant,  accused No. 1,  her brother, had
13
created another forged and fabricated document styled as deed
of confirmation (Hiba Bil Musha) dated 08.03.1990 confirming
the oral gift to accused  No. 1 and also recording handing over
of physical possession.  It is her case, that on the basis of these
fabricated documents,  accused No. 1, posing himself to be an
absolute owner of the property, executed a lease deed in favour
of accused No. 4  (the appellant herein in one of the appeals) on
01.12.2008.   It is further the case of the complainant, that
thereafter   accused   No.   4   executed   a   sub­lease   in   favour   of
accused No. 5 ­ HPCL represented by accused Nos. 6 and 9
within  a  period   of   two   months  i.e.   on  30.01.2009  and  that
accused Nos. 7 and 8 are the attesting witnesses. That is all the
case of the complainant.
19. The complaint filed by respondent No. 2 runs into 26
pages and 26 paragraphs. As already discussed hereinabove, it
reveals a disputed property claim based on inheritance between
the complainant, her sisters and her brother, accused No. 1.  A
perusal   of   the   complaint   would   further   reveal,   that   the
complainant   also   disputes   with   regard   to   the   area   of   the
property   including   the   manner   of   its   devolution   upon   the
parents of the complainant and her competing interest with that
14
of her siblings. There is not even a whisper in the complaint
that the present appellant, i.e., accused No. 4 was fully aware
that accused No. 1 was not the sole beneficiary by inheritance
and that the property had devolved upon the complainant and
her sisters. Also there is nothing to show that knowing this he
has collusively entered into the lease agreement with accused
No. 1, by creating a false and fabricated will. Though, there is a
mention  with   regard  to  conspiracy,  but there  is   not  even  a
suggestion with regard to manner of such conspiracy.
20. Upon perusal of the complaint itself, it would reveal
that   the   father   of   the   complainant   and   accused   No.   3   had
himself   entered   into   a   development   agreement   which
subsequently came to be cancelled during his lifetime. It would
also reveal, that only after the lease in question was executed in
favour of the appellant, the complainant has raised all these
issues. We are of the considered view, that the issues raised
reflect a civil dispute with regard to inheritance amongst the
legal heirs. We fail to understand as to how a dispute with
regard to the inheritance under a will and deed of confirmation
can be decided in a criminal proceeding. We find, that the same
can be done only in an appropriate civil proceeding. Not only
15
that,   the   civil   proceedings   with   that   regard   are   already
instituted by various parties including the complainant. These
proceedings are as follows:
(i) O.S. No. 239 of 2004 on the file of the Hon’ble XI ACJ,
CCC, Hyderabad.
(ii) O.S. No. 337 of 2002 on the file of the Hon’ble XI ACJ,
CCC, Hyderabad.
(iii) O.S. No. 58 of 2001 on the file of the Hon’ble XI ACJ,
CCC, Hyderabad.
(iv) O.S. No. 277 of 2000 on the file of the Hon’ble XI ACJ,
CCC, Hyderabad.
(v) O.S. No. 506 of 2001 on the file of the Hon’ble XI ACJ,
CCC, Hyderabad.
(vi) Writ Petition (C) No. 685 of 2010.
21. It will be relevant to refer that though in the complaint,
the complainant had mentioned about pendency of O.S. No.
1989 of 1996 against accused No. 3 and O.S. No. 1403 of 1999
against   M/s   Banjara   Construction   Pvt.   Ltd.,   there   is   no
reference with regard to the other proceedings. Accused No. 4
has been impleaded as a party­defendant in O.S. No. 506 of
2001 only on 30.10.2009.
16
22. O.S. No. 239 of 2004 has already been filed by the
complainant against her brother, accused No. 1 and her three
sisters inter alia for partition and separate possession which is
stated to be pending. As such, the documents alleged to be
fraudulent in the complaint will fall for consideration in the
said   suit.   A   possibility   of   contradictory   finding   in   civil
proceeding as against criminal  proceedings  cannot be ruled
out.   Though,   the   complainant   had   filed   Writ   Petition   Nos.
23017/2009 and 23672/2009 to restrain construction on the
plot   in   question,   the   same   was   dismissed   on   28.10.2009.
However, there is no mention with regard to the same in the
complaint.   This   Court   in  Sardool   Singh     vs.     Nasib   Kaur2
observed as follows:
  “2.    A civil suit between the parties is pending
wherein the contention of the respondent is that no
will   was   executed   whereas   the   contention   of   the
appellants is that a will has been executed by the
testator. A case for grant of probate is also pending
in the court of learned District Judge, Rampur. The
civil   court   is   therefore   seized   of   the   question   as
regards the validity of the will. The matter is sub
judice in the aforesaid two cases in civil courts. At
this   juncture   the   respondent   cannot   therefore   be
permitted to institute a criminal prosecution on the
allegation that the will is a forged one. That question
will   have   to   be   decided   by   the   civil   court   after
recording the evidence and hearing the parties in
accordance   with   law.   It   would   not   be   proper   to
permit the respondent to prosecute the appellants
on this allegation when the validity of the will is
2 (1987) Supp. SCC 146
17
being tested before a civil court. We, therefore, allow
the appeal, set aside the order of the High Court,
and quash the criminal proceedings pending in the
Court   of   the   Judicial   Magistrate,   First   Class,
Chandigarh   in   the   case   entitled Smt   Nasib
Kaur v. Sardool Singh. This will not come in the way
of instituting appropriate proceedings in future in
case the civil court comes to the conclusion that the
will   is   a   forged   one.   We   of   course   refrain   from
expressing any opinion as regards genuineness or
otherwise   of   the   Will   in   question   as   there   is   no
occasion to do so and the question is wide open
before the lower courts.”
23. It is further to be noted, that the complainant and her
sisters executed an agreement of sale­cum­irrevocable specific
power of attorney on 20.03.2015 in favour of one Mohd. Khalid
Shareef. Various litigations have also been filed with regard to
the installation of the petrol pump and grant of N.O.C. etc.  The
complaint was sent to the police for registration of an FIR and
investigation   under   Section   156(3)   of   the   Cr.P.C.   on
24.11.2010. In its final report dated 30.08.2017, the police has
opined that no material had surfaced to show any conspiracy
during investigation.
24. The   learned   Judge   himself   in   Paragraph   8,   after
observing that it is nobodies case that the signatures on the
documents in question are forged or anybody has impersonated
for the purpose of cheating, goes on to observe thus:
18
“8…..The   allegation   in   nutshell   in   this   regard   is   that
accused No. 1 is not the absolute owner of the properties,
but for one of the co­owner or co­sharer along with the de
facto   complainant   and   other   sisters   of   them   and   he
falsely   claimed   as   if   he   is   the   owner   for   purpose   of
cheating by using as if genuine forged and fabricated
documents   of   so   called   will   and   so   called   deed   of
confirmation. The so called will is of the year 1950 and
the so called deed of confirmation is of year 1989­1990
and the alleged oral gift prior to that is of 1966….” 
25. We fail to understand, as to how after observing the
aforesaid, the learned Judge could have refused to quash the
proceedings against accused No. 4. Not only that, but on the
basis of the said observations, the learned Judge himself has
observed that it will not be in the interest of justice to permit
the Police authorities to arrest the accused for the purposes of
investigation.  We are of the considered view, that the learned
Judge, having found that the entire allegations with regard to
forgery and fabrication and accused No. 1 executing the lease
deed on the basis of the said forged and fabricated documents
were only against accused No. 1, ought to have exercised his
jurisdiction to quash the proceedings qua accused No. 4 also.
We find that the learned Judge ought to have applied the same
parameters   to   the   present   accused   No.   4,   which   had   been
applied to the other accused whose applications were allowed.
19
26. Insofar   as   the   criminal   appeals   arising   out   of   the
special   leave   petitions   filed   by   the   original   complainant   is
concerned, we absolutely find no merit in the appeals.   The
learned   single   Judge   has   rightly   found   that   there   was   no
material   to   proceed   against   accused   No.   5   –   HPCL   and   its
officers accused Nos. 6 and 9 as also accused Nos. 7 and 8, who
have   been   roped   in,   only   because   they   were   the  attesting
witnesses. The learned single Judge has rightly exercised his
jurisdiction under Section 482 of the Cr.P.C.
27. Insofar as original accused No. 4 is concerned, we have
no hesitation to hold, that his case is covered by categories (1)
and (3) carved out by this Court in the case of  Bhajan  Lal
(supra).   As   already   discussed   hereinabove,   even   if   the
allegations in the complaint are taken on its face value, there is
no material to proceed further against accused No. 4.  We are of
the considered view, that continuation of criminal proceedings
against accused No. 4, M. Srikanth, would amount to nothing
else   but   an   abuse   of   process   of   law.   As   such,   his   appeal
deserves to be allowed.
20
28. In the result, the criminal appeal arising out of S.L.P.
(Crl.) No. 9156/2017 filed by accused No. 4 is allowed. The
criminal proceedings in Crime No. 311/2010 of P.S., Central
Crime Station, Hyderabad, against accused No. 4 are quashed
and set aside. The criminal appeals arising out of S.L.P. (Crl.)
Nos.   9160­61/2017   filed   by   the   original   complainant   are
dismissed.
…....................J.
                             [NAVIN SINHA]
......................J.
                                                  [B.R. GAVAI]
NEW DELHI;
OCTOBER 21, 2019.

Order 21 Rule 25 of the CPC & Order 21 Rule 35(3) CPC Whether delivery of possession to the decree holder in execution of decree with police assistance was vitiated in absence of any orders by the Court for providing such police assistance? - No

Order 21 Rule 25 of the CPC & Order 21 Rule 35(3) CPC
Whether delivery of possession to the decree holder in execution of decree with police assistance was vitiated in absence of any orders by the Court for providing such police assistance? - No

In an execution proceeding, resort to use of police force for effecting delivery of possession
without obtaining appropriate orders from the executing court in that regard is a practice fraught with danger. A decree holder cannot be permitted to resort to procedures contrary to the law to take   forcible   possession   by   sheer   use   of   police   force   merely because he has a Decree in his favour.  Such an act amounts to subverting the law and misusing the process of law and courts. A litigant cannot be permitted to abuse the process of law and must pay   the   price   by   redelivery   of   possession.   Repeated   judicial pronouncements have held that in this country, possession can be taken even by a lawful owner only in accordance with law and if dispossession is contrary to law, the person evicted has to be put back in possession till he is duly evicted in accordance with law.  
 Order 21 Rule 25 of the CPC provides for endorsement by the officer entrusted with the execution that if he is unable to execute the process, the court shall examine the reasons for the
alleged inability and pass appropriate orders.   No report was submitted by the bailiff asking for police assistance in execution for reasons specified.  Likewise, there is no report under Order 21 Rule 35(3) CPC requesting for police assistance for effectuating delivery of possession.   
There is no material if the application before the Tehsildar was made by the bailiff or the decree holder.
Be that as it may, we are constrained to hold that the procedure adopted by the police with regard to the delivery of possession by resorting to a manner outside the procedure of the court, using the court orders as an umbrella was wholly unwarranted. The executive authorities were completely unjustified in their over enthusiasm   without   asking   for   proper   court   orders   regarding police assistance despite the fact that they were fully aware that possession was to be delivered in pursuance of a court order. 

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NO(s).8175   OF 2019
(arising out of SLP(C) No.3343 of 2014)
OM PARKASH AND ANOTHER             ......APPELLANT(S)
VERSUS
AMAR SINGH AND ANOTHER        ...RESPONDENT(S)
WITH
CIVIL APPEAL NO(s).8176     OF 2019
(arising out of SLP(C) No.20368 of 2015)
AMAR SINGH  ......APPELLANT(S)
VERSUS
OM PARKASH AND OTHERS         ...RESPONDENT(S)
AND
CONTEMPT PETITION (C) No.468 OF 2014
IN CIVIL APPEAL NO.1637 OF 2011
AMAR SINGH  ....PETITIONER(S)
VERSUS
OM PARKASH AND OTHERS         ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
Leave granted.
2. The appellant­Om Parkash is the decree holder aggrieved by
the order of the High court holding that the delivery of the suit
property to him in the execution proceedings by use of police
force, was vitiated in law as no orders had been obtained from
1
the Court for such police assistance.   Judgment debtor Amar
Singh has been directed to be put back in possession through the
bailiff.   The   execution   proceedings   closed   on   11.10.2013   after
delivery   of   possession,   has   been   revived.   The   entitlement   to
possession   has   been   left   to   be   decided   afresh   in   the   revived
execution proceedings.  The parties shall hereinafter be referred
to   as   decree   holder   and   judgment   debtor   respectively   for
convenience.
3. The controversy for our determination in the present appeal
as   addressed   by  learned  counsel  for  the   parties   is  extremely
limited. Whether delivery of possession to the decree holder with
police assistance was vitiated in absence of any orders by the
Court for providing such police assistance?
4. Learned counsel for the decree holder Shri Gagan Gupta
submitted that the High Court has erred in holding that the
decree holder had resorted to unlawful and illegal methods for
execution of the decree for possession.   The decree holder had
never   made   any   request   for   deployment   of   police   force   for
execution.  The Tehsildar himself being apprehensive of law and
order problems during delivery of possession to the decree holder,
had   suo   moto   sought   police   assistance   from   the   District
2
Magistrate and in pursuance of which the Commissioner of Police
had   directed   the   deployment.   The   Deputy   Commissioner   had
instructed the Tehsildar to send compliance report to the court
directly.   In   consequence,   possession   was   delivered   on
11.10.2013. The executing court accepted the report regarding
delivery of possession and closed the execution proceedings.  The
decree holder had purchased the suit lands in a court auction
sale dated 27.03.1990.  Sale certificate was issued in his favour
on 27.04.1998 and registration completed on 30.04.1998.  After a
protracted battle at the instance of the judgment debtor Amar
Singh,   delivery   of   possession   had   been   effected.     The   decree
holder has remained in possession by virtue of the order of status
quo passed by this court on 05.02.2014.
5. Shri   Rakesh   Kumar   Khanna,   learned   senior   counsel
appearing   for   judgment   debtor,   submitted   that   the   anxiety
expressed   by   the   High   Court   in   the   impugned   order   is   fully
justified and calls for no interference. In an execution proceeding,
resort to use of police force for effecting delivery of possession
without obtaining appropriate orders from the executing court in
that regard is a practice fraught with danger. A decree holder
3
cannot be permitted to resort to procedures contrary to the law to
take   forcible   possession   by   sheer   use   of   police   force   merely
because he has a Decree in his favour.  Such an act amounts to
subverting the law and misusing the process of law and courts. A
litigant cannot be permitted to abuse the process of law and must
pay   the   price   by   redelivery   of   possession.   Repeated   judicial
pronouncements have held that in this country, possession can
be taken even by a lawful owner only in accordance with law and
if dispossession is contrary to law, the person evicted has to be
put back in possession till he is duly evicted in accordance with
law.  
6. We   have   been   carefully   taken   through   the   materials   on
record and have also heard the counsel for the parties at length.
Though   the   nature   of   the   controversy   before   us   is   extremely
limited, a brief recapitulation of facts will be necessary to put
matters in its proper perspective for better appreciation.
7. The judgment debtor claimed to be a purchaser of the suit
property   by   a   sale   deed   dated   13.02.1973.   His   writ   petition
challenging the acquisition proceedings under Section 4 of the
4
Land Acquisition Act, 1894 dated 10.12.1973, after publication of
the award, was dismissed on 10.04.1989.   The acquired lands
became the subject of recovery proceedings with regard to a claim
for compensation by another whose lands were also acquired but
compensation   was   not   paid.     The   decree   holder   was   the
successful bidder in a court auction held on 27.03.1990.   The
auction sale was confirmed on 17.03.1997, sale certificate was
issued in his favour and the sale deed registered on 30.04.1998.
The decree holder then applied for delivery of possession in an
execution proceeding dated 19.09.1998.  At this stage, judgment
debtor   filed   Civil   Suit   No.236   of   1998   seeking   permanent
injunction against dispossession from the suit lands. Objections
were also filed by judgment debtor under Order 21, Rules 97 &
99 of the Code of Civil Procedure (hereinafter called “the CPC”) in
the execution proceedings instituted by the decree holder.   On
20.10.1999, the execution proceedings were dismissed as being
barred by time with liberty to file a substantive civil suit for
possession.   The   decree   holder   then   filed   a   fresh   suit   for
possession  on 11.01.2000.   The judgment debtor had filed a
Miscellaneous   Application   in   the   execution   proceedings   to
restrain his dispossession from the suit lands.  The decree holder
5
had preferred Civil Revision No. 4348 of 2006 against the same
before the High Court which culminated in a Civil Appeal No.
1637   of   2011   before   this   Court   by   judgment   debtor.     On
14.02.2011, the Civil Appeal was disposed of granting status quo
till disposal of the proceedings pending before the High Court.   A
contempt petition has also been filed arising from the same.  In
view of the fact that the proceedings before the High Court had
itself been disposed of, in our opinion nothing survives in the
contempt petition.
8. The Civil Suit filed by the decree holder for possession and
the suit filed by the judgment debtor for injunction, were heard
together.  The suit by the decree holder was decreed and the suit
by the judgment debtor was dismissed.  The first appeal preferred
by   the   judgment   debtor   was   dismissed   on   10.04.1989.
Thereafter, he preferred a regular second appeal only in the year
2019 and which is stated to be pending before the High court.
9. The decree holder then filed fresh execution proceedings on
26.05.2012.     The   objections   filed   by   judgment   debtor   to   the
execution proceedings were dismissed on 10.04.2013 and the
appeal preferred him has also been rejected on 12.04.2017.
6
10. At this stage, it may only be noticed that after dismissal of
his writ petition on 10.04.1989 challenging the land acquisition
proceedings,   judgment   debtor   had   filed   an   application   under
Order 7 Rule 11 CPC for rejection of the suit for possession filed
by the decree holder. The application was rejected.  Civil Revision
No.   4522   of   2009   preferred   by   judgment   debtor   was   also
dismissed by the High Court holding that the lands had already
vested in the State pursuant to acquisition and that judgment
debtor had no subsisting right, title or interest in the suit lands.
The order of status quo in Civil Appeal No.1637 of 2011 arose
from the execution proceedings levied on 27.03.1990 by another
claimant who had not been paid compensation for acquired lands
and for which reason the suit lands were attached as ownership
stood vested in the State by virtue of acquisition.  Once the suit
property was auction sold in the said execution proceedings and
it came to an end, the order of status quo loses much of its
significance. In any event the appellant instituted fresh execution
proceedings   on   26.05.2012.     It   will,   thus,   be   seen   that
notwithstanding the decree in his favour, the decree holder has
7
since long been prevented and stalled by the judgment debtor
from obtaining possession in execution proceedings.
11.   Warrant for possession was issued on 13.03.2013, which
could   not   be   executed.     Fresh   warrants   for   possession   were
issued   on   10.05.2013   which   also   could   not   be   executed.
Consequently, fresh warrants were again issued for 19.07.2013
which were followed by fresh warrants returnable on 27.08.2013.
In   the   meantime,   the   Tehsildar   on   09.05.2013   wrote   to   the
District Magistrate requesting for police help as he apprehended
trouble at the time of delivery of possession.  There is no material
to conclude that it was done at the behest of the decree holder.
The delivery warrants issued on 27.08.2013 was made returnable
on 05.10.2013.  The authorities were nonetheless proceeding on
basis of the earlier delivery warrants. The request for police help
by the Tehsildar was then routed through the Sub­Divisional
Magistrate,   the   District   Magistrate,   the   Deputy   Commissioner
and   the   Commissioner   of   Police.   Possession   was   delivered   in
presence of the police on 11.10.2013.  The delivery of possession
proceedings records that there had been some obstruction during
the process which was also video graphed but ultimately in view
of   the   police   presence  matters   were  pacified.     The   warrants
8
recording delivery of possession were returned back to the court
leading to the closing of execution proceedings on 11.10.2013.
12. The judgment debtor was well aware that the lands had
already   vested   in   the   State   pursuant   to   the   land   acquisition
proceedings.  His challenge to the same had been unsuccessful.
His suit had as also the First Appeal had been dismissed.  His
objections in the execution proceedings were also rejected.   He
therefore had no authority or right to remain in possession of suit
lands   and   was   required   to   vacate   the   premises.     In   the
circumstances,   it   cannot   be   said   that   the   apprehensions
expressed by the authorities at the time of delivery of possession
was malafide or wholly unwarranted.  The present is not a case
where the judgment debtor has been forcibly ousted from the suit
lands by use of brute police power without any orders in court
proceedings.
13. Order 21 Rule 25 of the CPC provides for endorsement by
the officer entrusted with the execution that if he is unable to
execute the process, the court shall examine the reasons for the
alleged inability and pass appropriate orders.   No report was
submitted by the bailiff asking for police assistance in execution
9
for reasons specified.  Likewise, there is no report under Order 21
Rule 35(3) CPC requesting for police assistance for effectuating
delivery of possession.   There is no material if the application
before the Tehsildar was made by the bailiff or the decree holder.
Be that as it may, we are constrained to hold that the procedure
adopted by the police with regard to the delivery of possession by
resorting to a manner outside the procedure of the court, using
the court orders as an umbrella was wholly unwarranted. The
executive authorities were completely unjustified in their over
enthusiasm   without   asking   for   proper   court   orders   regarding
police assistance despite the fact that they were fully aware that
possession was to be delivered in pursuance of a court order.  At
this belated point of time, we are not inclined or persuaded to
order further enquiry into that aspect of the matter.  The anxiety
expressed by the High Court cannot be said to be unfounded or
without substance.   We fully endorse the anguish of the High
Court, but in the peculiar facts and circumstances of the present
case, the apparent absence of the semblance of any right, title or
interest in the judgment debtor to be on the lands in question, in
exercise of our discretionary jurisdiction decline to interfere with
the   order   dated   11.10.2013   recording   delivery   of   possession.
10
This order is being passed in the peculiar facts of the present
case.  We may not be understood to have pardoned or overlooked
the executive authorities for the manner in which they have acted
and any misadventure in future without appropriate orders of a
court   will   be   obviously   at   their   own   risks,   costs   and
consequences.
14. We, therefore, set aside that part of the order of the High
Court by which possession has been directed to be redelivered to
judgment   debtor,   and   the   execution   proceedings   have   been
revived for fresh delivery of possession to the decree holder.  With
that   modification   of   the   impugned   order,   the   appeals   and
contempt petition stand disposed of.
.………………………. J.
(Navin Sinha)
………………………. J.
   (B.R. Gavai)
New Delhi,
October 21, 2019
11

When there was a long difference of time between the said dowry demand and the incident - Sec.304 B IPC not attracts As far as the demand of dowry immediately after the marriage is concerned, there is virtually no evidence whatsoever. Even if the evidence of the statement of the father is taken into consideration, there is a long difference of time between the said demand and the incident which is also three years later. Even if the statements of the prosecution witnesses are accepted to be correct, what turns out is that on the occasion of the birth of the son, the demand for Chhuchhak was made which included clothes and scooter. The issue that arises is whether such a demand can be said to be a demand which can be considered a demand for dowry. To bring an offence within the ambit of Section 304B, IPC, it is only a demand of dowry which will be relevant. we are of the considered view that the conviction of the appellant under Section 304B, IPC cannot be upheld and his conviction is converted into section 498A, IPC.

When there was a   long   difference   of time   between   the   said  dowry  demand   and   the   incident  - Sec.304 B IPC not attracts
As   far   as   the demand   of   dowry   immediately   after   the   marriage   is concerned,   there   is   virtually   no   evidence   whatsoever. Even   if   the   evidence   of   the   statement   of   the   father   is taken   into   consideration,   there   is   a   long   difference   of time   between   the   said   demand   and   the   incident   which   is also three years later.
Even   if   the   statements   of   the   prosecution   witnesses are accepted to be correct, what turns out is that on the occasion   of   the   birth   of   the   son,   the   demand   for Chhuchhak   was   made   which   included   clothes   and   scooter.
The   issue   that   arises   is   whether   such   a   demand   can   be said to be a demand which can be considered a demand for dowry.     
To   bring   an   offence   within   the   ambit   of   Section 304B,   IPC,   it   is   only   a   demand   of   dowry   which   will   be relevant.  
we   are of   the   considered   view   that   the   conviction   of   the appellant   under   Section   304B,   IPC   cannot   be   upheld   and his   conviction   is   converted   into   section   498A,   IPC.  


IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal  No(s).  231/2010
SATYAVART                                           Appellant(s)
                                VERSUS
STATE OF HARYANA                                Respondent(s)
  O R D E R
This appeal by the appellant is directed against the
judgment of the High Court, whereby his conviction under
Section   304B   of   the   Indian   Penal   Code,   1860   (IPC)   has
been   upheld   but   the   sentence   has   been   reduced   from   10
years   to   7   years.       The   accused   and   his   mother   were
charged   for   having   committing   a   murder   under   Section
304B,   IPC.     The   Trial   Court   convicted   both   of   them   and
sentenced them to undergo 10 years life imprisonment.  On
appeal being filed, the High Court converted the sentence
of   the   mother-in-law   to   one   under   Section   498A,   IPC   and
reduced   the   sentence   to   the   period   of   incarceration
already undergone.  The conviction of the appellant under
Section 304B, IPC was upheld but the sentence was reduced
to seven years.
The undisputed facts are that the deceased - Kamlesh
was   married   to   the   appellant   -   Satyavart   on   21.01.1991.
Unfortunately,   Kamlesh   committed   suicide   in   the   night
intervening   31.12.1993   and   01.01.1994   that   was   well
1

within seven years of marriage.
The evidence of the alleged demand of dowry consists
of the statements of the father (PW4), the brother (PW5)
and   the   mother   (PW6).     The   father   states   that   about   1
year   after   the   marriage   when   he   went   to   meet   his
daughter, she told him that she had been troubled by her
mother-in-law   for   bringing   insufficient   dowry.     He
further   states   that   his   daughter   gave   birth   to   a   son   on
14.08.1993   and   a   messenger,   probably   some   barber,   was
sent   from   the   house   of   her   in-laws   to   inform   him   about
the birth of a grand child.  This messenger also informed
him   that   the   accused   had   demanded   41   pairs   of   clothing
for ladies, two head-covering for ladies and one scooter
as   Chhuchhak   i.e. gifts to be given by the family of the
mother   who   has   given   birth   to   a   male   child.     The   father
states   that   he   gave   all   the   articles   except   a   scooter.
The   brother   of   Kamlesh   (PW5)   had   taken   the   articles   and
on   return   he   informed   him   that   the   mother-in-law   of
Kamlesh   was   unhappy   because   the   scooter   had   not   been
provided and the clothes were of poor quality.
After   about   one   month,   Kamlesh   came   to   stay   at   her
parental home.   Some days later, the appellant � accused
took his wife back and then he had asked the prosecution
witness   as   to   why   the   scooter   had   not   been   given   in
Chuchhak .     As   far   as   the   statement   of   this   witness   is
concerned,   the   first   demand   of   dowry   is   not   by   the
present   accused   but   by   the   mother-in-law.     The   second
2

demand was conveyed through a messenger which is more in
the nature of hearsay. 
We   shall   deal   with   the   statement   of   the   brother   at
the later stage but the only relevant evidence as far as
the witness is concerned is the alleged statement made by
the accused to the witness as to why the scooter had not
been given in  Chhuchhak .  The witness was confronted with
the   statement   under   Section   161   of   the   Code   of   Criminal
Procedure,   1973   (CrPC),   wherein   it   is   not   recorded   that
when   the   accused   came   to   take   his   daughter   and   he   had
made   such   a   demand   to   this   witness.     In   fact,   this
witness   admits   that   he   had   not   made   such   a   statement   to
the police.  
The statement of the brother of Kamlesh is similar to
that of the father with regard to the demand of  Chhuchhak
being raised.  He states that on 05.09.1993, he had given
the   clothes   to   the   in-laws   of   his   sister   but   not   the
scooter.     On   01.12.1993,   he   had   brought   his   sister   from
her   matrimonial   home   to   the   parental   home   and   at   that
time   his   sister   told   him   that   the   accused   were   still
demanding   the   scooter.     He   further   states   that   on
15.12.1993 the appellant took away his sister back to her
matrimonial   home.     He   again   visited   his   sister�s
matrimonial   home   and   there   she   told   him   that   either   the
parents   should   provide   a   scooter   else   the   accused   would
kill her.  In cross-examination, this witness states that
at   the   time   when   he   handed   over   the   articles   of
3

Chhuchhak ,   the   occasion   was   celebrated   in   a   big   way   and
he   was   dancing   and   taking   meals   with   the   family   of   her
sister�s in-laws.  As far as the mother is concerned, her
statement   is   similar.     The   main   evidence   is   that   of   the
brother. 
Another   aspect   which   has   been   urged   by   learned
counsel   for   the   appellant   is   that   the   family   members   of
the   deceased   had   attended   her   cremation   and   made   no
complaint   at   that   stage   and   it   is   only   after   three   days
of   her   death,   the   complaint   was   lodged.     As   far   as   the
demand   of   dowry   immediately   after   the   marriage   is
concerned,   there   is   virtually   no   evidence   whatsoever.
Even   if   the   evidence   of   the   statement   of   the   father   is
taken   into   consideration,   there   is   a   long   difference   of
time   between   the   said   demand   and   the   incident   which   is
also three years later.
Even   if   the   statements   of   the   prosecution   witnesses
are accepted to be correct, what turns out is that on the
occasion   of   the   birth   of   the   son,   the   demand   for
Chhuchhak   was   made   which   included   clothes   and   scooter.
The   issue   that   arises   is   whether   such   a   demand   can   be
said to be a demand which can be considered a demand for
dowry.     To   bring   an   offence   within   the   ambit   of   Section
304B,   IPC,   it   is   only   a   demand   of   dowry   which   will   be
relevant.  The witnesses themselves have well referred to
the demand for Chhuchhak and not for dowry.
The   custom   of   Chhuchhak,   as   we   infer   from   the
4

evidence, appears to be a custom of the family of the new
mother,   who   gives   birth   to   a   son,   giving   items   of
clothing   etc.   to   the   family   of   her   in-laws.     This
practice   is   not     a   healthy   practice.     Such   customs   must
be   spurned   by   a   society.     However,   while   deciding   a
criminal   case   under   Section   304B,   IPC,   the   Court   has   to
strictly   consider   the   letter   of   the   law.     One   of   the
essential ingredients of Section 304B, IPC is that there
should   be   a   demand   for   dowry   followed   by   an   unnatural
death.  In the present case, according to the prosecution
witnesses, what was demanded was   Chhuchhak .   This demand
was   made   in   connection   with   the   birth   of   the   male   child
and not in connection with the marriage and therefore it
cannot be called a demand for dowry. 
Another   aspect   that   gives   benefit   to   the   present
appellant   is   that   the   mother   of   the   appellant   who   was
equally complicit as him in all the demands has been held
guilty only under Section 498A, IPC by the High Court and
has been acquitted of the charge under Section 304B, IPC.
On the same set of evidence against both the accused, we
do   not   understand   how   the   High   Court   took   two   different
views.     We   have   referred   to   the   witnesses   in   detail   and
they   have   ascribed   a   bigger   role   to   the   mother-in-law
than to the husband.  Even in the letter of the deceased,
the daughter had made a complaint that her mother-in-law
and sister-in-law were troubling her but her husband was
ok with her.
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Taking   all   these   factors   into   consideration,   we   are
of   the   considered   view   that   the   conviction   of   the
appellant   under   Section   304B,   IPC   cannot   be   upheld   and
his   conviction   is   converted   into   section   498A,   IPC.     It
is   stated   that   he   has   already   undergone   2   �   years   of
imprisonment   which   is   sufficient   to   meet   the   ends   of
justice.     The   criminal   appeal   is   allowed.     Bail   bonds
stand discharged.
� ....................J.
[DEEPAK GUPTA]
� ....................J.
[ANIRUDDHA BOSE]
NEW DELHI;
September 19, 2019.
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ITEM NO.118               COURT NO.13               SECTION II-B
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS
Criminal Appeal  No(s).  231/2010
SATYAVART                                          Appellant(s)
                                VERSUS
THE STATE OF HARYANA                               Respondent(s)

Date : 19-09-2019  This appeal was called on for hearing today.
CORAM :  HON'BLE MR. JUSTICE DEEPAK GUPTA
          HON'BLE MR. JUSTICE ANIRUDDHA BOSE
For Appellant(s) Mr. Ansar Ahmad Chaudhary, AOR
                 
For Respondent(s) Mr. Raj Singh Rana, Adv.
Mr. Pankaj Kumar Singh, Adv.
Mr. Sidhinath Singh Sengar, Adv.
Mr. Sanjeet Paliwal, Adv.
For Mr. Vishwa Pal Singh, AOR
                   
          UPON hearing the counsel the Court made the following
                             O R D E R
The   criminal   appeal   is   allowed   in   terms   of   the   signed   order.
Bail bonds stand discharged.
Pending application, if any, stands disposed of.
(MEENAKSHI  KOHLI)                              (RENU KAPOOR)
  COURT MASTER      COURT MASTER
[Signed order is placed on the file]
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