dying   declaration,   recorded   by   the Executive   Magistrate   ­   P.W.19   did   not   contain   the thumb impression of the deceased, and hence could not be relied upon. The Executive Magistrate ­ P.W.19 has   stated that  the  signature  or  thumb  impression could not be taken since there were injuries on both his hands. 

Reliance is placed on the decision of this Court in Sukanti Moharana v. State of Orissa9 wherein the Court took the view that there is no reason why a dying declaration   which   is   otherwise   found   to   be   true, voluntary and correct should be rejected only because the person who recorded the dying declaration could not affix his signatures or thumb impressions on the dying declaration


NON ­ REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1522 OF 2009
DAYARAM & ANOTHER      …APPELLANT
Versus
STATE OF MADHYA PRADESH …RESPONDENT
J U D G M E N T
INDU MALHOTRA, J.
1. The appellants have filed the present Criminal Appeal to
challenge the order of conviction under Section 302, IPC
and sentence of Life Imprisonment passed vide Judgment
and Order dated 04.12.2008 by the Jabalpur Bench of the
Madhya   Pradesh   High   Court   in   Criminal   Appeal
No.206/1994. The High Court has affirmed the Judgment
passed by the Sessions Court.
1
2. The present appeal arises out of FIR No. 86/1991 lodged on
19.12.1991 at 4:20 p.m. under Sections 341, 323, 325, 307
read with 34 IPC by the deceased – Ghansu himself.
Ghansu, in his F.I.R, stated that on 19.12.1991 he had
gone to Ishanagar Police Station to file a Report against
appellant No.1 ­ Dayaram Yadav for having beaten his son
Chandu. On his way back from the Police Station, at about
3:00   p.m.,   near   Nahar   ki   Puliya,   both   the   accused  viz.
Dayaram and Parsu Yadav were hiding in the bushes with
lathis.   Both   of   them   waylaid   him   started   hitting   the
deceased with lathis on his head, hands, legs and body
which led to severe bleeding. Ghansu fell unconscious. The
accused assumed that the Ghansu had died, and threw his
body into the canal, and fled from the scene. While Ghansu
was in the water, he regained consciousness and cried for
help. Ghansu stated that Chouda Chamar – P.W.9, Thakur
Sunla Kumar, Lula Kumhar and Ramlal Kumhar reached
the site of occurrence and rescued him. Ghansu stated that
the   beating   was   given   with   a   motive   to   eliminate   him
completely.
2
3. Ghansu was taken to the Ishanagar Police Station where the
F.I.R was lodged. Thereafter, he was taken to the Primary
Health Centre, Ishanagar for treatment.
The Executive Magistrate ­ P.W.19 recorded the dying
declaration of  Ghansu at 4:55 p.m. on 19.12.1991, which
reads as follows:
“I, Ghansu Yadav son of Judhiya Yadav,
aged   about   50   years,   occupation   –
cultivation,   resident   of   Pahargaon   do
hereby   state   on   oath   that   when   I   was
returning   back   to   my   village   from
Ishanagar, then, in the afternoon at nearby
place   of   the   culvert   (puliya)   of   canal   in
village   Pahargaon,   Dayaram   and   Parsu,
sons   of   Durju   Yadav,   both   brothers,
assaulted me with lathis.
Even   prior   to   it,   my   son   Chandu   was
assaulted by Dayaram. I had gone to the
Police Station to register a Report. But, the
Report could not be registered. Thereafter, I,
with my son Chandu, was coming back and
at   that   time,   Dayaram   and   Parsu   have
assaulted me.”
The medical examination of Ghansu was conducted by
P.W.14 – Dr. Ramakant Chaturvedi who certified that the
dying declaration was recorded in his presence and Ghansu
was fully conscious and well­oriented to the time and place
at the time of giving his statement.
4. Ghansu was referred to the District Hospital, Chhattarpur
due to his critical condition. He succumbed to his injuries
at the Hospital.
3
5. The   Post   Mortem   examination   of   the   deceased   was
conducted by Dr. Hari Aggarwal – P.W.17 who recorded the
following injuries:
(i) Wound on the right forearm – ½ x ½ inch – underlying
bone broken in pieces.
(ii) Wound   on   left   forearm   with   contusion   on   medial
border forearm lower 1/3 – underlying bone broken in
pieces.
(iii) Deep Wound on right III of 2 x 1 x 1 inches. Underlying
bone of II, IV and V metacarpal broken.
(iv) Deep Lacerated Wound on scalp – 2 x  ½  inches –
underlying   parietal   bone   broken,   and   haematoma
collection, subdural and epidural.
(v) Lacerated wound – ½ x ½ inches size on right leg.
(vi) Parietal bone broken.
The medical report recorded that the cause of death was
shock due to head injury and other injuries.
6. The case was registered as Case No. 20/ 1992 before the
Sessions   Judge,   Chhatarpur,   Madhya   Pradesh   (Sessions
Court).
P.W.3 – Ram Lal, P.W.4 – Balwant Singh, P.W.7 – Asha
Ram, P.W.8 – Arjun, P.W.9 – Chouda Chamar and P.W.15 –
Vijay Singh deposed that they heard pother of screaming
and   shouting   of   Ghansu.   They   went   towards   the   canal
where Ghansu was lying with severe injuries all over his
4
body. Ghansu told P.W.4 – Balwant Singh and other people
who   had   gathered   there   that   Durju   Nata   (father   of   the
accused) had got the assault done on him.
In the statement of P.W.3 and P.W.4 before the Police,
they   deposed   that   when   they   rescued   Ghansu   from   the
canal, Ghansu told them that the present accused have
injured him with lathis. The statements given by P.W.3 and
P.W.4 were confirmed by the I.O – P.W.11.
However, at the time of evidence, P.W.s 3, 4, 7, 8, 9
and 15 were declared hostile by the Prosecution.
7. The   Sessions   Court  vide  Judgment   and   Order   dated
05.02.1994   convicted   the   Appellants   for   murder   under
Section 302 IPC and sentenced them to Life Imprisonment.
The Sessions Court held that:
(i) The deceased – Ghansu had lodged the F.I.R [Ex­P­20]
wherein the Appellants were specifically mentioned as
the assailants. The F.I.R was recorded by P.W.16 – N.D
Mishra   who   certified   that   the   F.I.R   contained   the
thumb impression of the deceased.
(ii) The deceased was in a state of consciousness at the
time of filing the F.I.R, which is corroborated by the
medical   evidence   of   P.W.14   –   Dr.   Ramakant
Chaturvedi,   who   has   deposed   that   the   medical
5
certificate appended to the Dying Declaration was true
and correct.
The F.I.R was recorded 1 hour and 15 minutes prior to
the death of the deceased.
The F.I.R was treated as the first dying declaration of
the deceased.
(iii) The   statement   made   by   the   deceased   before   the
Executive   Magistrate   –   P.W.19   [Ex­P­19],   was
considered to be the second dying declaration. Even
though the second dying declaration does not bear the
thumb impression of the deceased, the contents of the
same   are   consistent   with   the   F.I.R   lodged   by   the
deceased himself which bears the thumb impression of
the deceased.
(iv) The   dying   declaration   recorded   by   the   Executive
Magistrate ­ P.W19 and the F.I.R recorded by P.W16
are consistent and credible.
(v) The Sessions Court convicted the Accused /Appellant
No.1 and Appellant No.2 under Section 302 IPC and
sentenced them to Life Imprisonment.
8. Aggrieved by Judgment dated 05.02.1994 passed by the
Trial Court, the Appellants filed a common appeal being
Criminal Appeal No. 206/1994 before the Madhya Pradesh
High Court.
6
8.1. The   High   Court  vide  the   impugned   Judgment   and
Order dated 04.12.2008 dismissed the Appeal filed by
the Appellants, and affirmed the Judgment and Order
of Conviction passed by the Sessions Court. The High
Court held that death of the deceased was homicidal,
and caused by grievous injuries on the head and other
parts of the body.
8.2. From   the   depositions   of   the   Executive   Magistrate   ­
P.W.19 and P.W.14 – Dr. Ramakant Chaturvedi, it is
evident that the deceased was conscious at the time of
recording the dying declaration. The Medical certificate
was   issued   by   P.W.14   –   Dr.   Ramakant   Chaturvedi
which   was   appended   at   the   foot   of   the   Dying
Declaration that the deceased was fully conscious at
the time of recording his dying declaration.
8.3. The High Court relied on the Judgment of this Court in
Laxman v. State of Maharashtra1 wherein this Court
held that:
“3…What   is   essentially   required   is   that
the   person   who   records   a   dying
declaration   must   be   satisfied   that   the
deceased was in a fit state of mind. Where
it   is   proved   by   the   testimony   of   the
magistrate  that  the  declarant  was  fit  to
make   the   statement   even   without
1 (2002) 6 SCC 710.
7
examination by the doctor the declaration
can   be   acted   upon   provided   the   court
ultimately holds the same to be voluntary
and truthful. A certification by the doctor is
essentially a rule of caution and therefore,
the voluntary and truthful  nature  of the
    declaration can be established otherwise.”
(emphasis supplied)
8.4. The High Court found that there was no inconsistency
in the statement made by the deceased in the F.I.R
lodged by the deceased before P.W.16 and the dying
declaration recorded by Executive Magistrate ­ P.W.19.
The substratum of both the Dying Declarations
remained   consistent   to   the   effect   that   both   the
Appellants had assaulted the deceased with  lathis  on
his head, hands and legs when he was returning from
Ishanagar Police Station.
The dying declaration was corroborated by the
medical   evidence   that   the   Appellants   had   inflicted
grievous injuries on the deceased, which caused his
death.
The High Court dismissed the Appeal filed by the
Appellants   and   affirmed   the   conviction   of   the
Appellants under Section 302 of IPC and the sentence
of Life Imprisonment.
9. The Appellants have filed a common Special Leave Petition,
against the Judgment and Order of the Madhya Pradesh
8
High Court dated 04.12.2008. Leave to Appeal was granted
vide Order dated 13.08.2009.
10. FINDINGS AND ANALYSIS
We have carefully perused the record of the case and
considered the submissions made by the Counsel for the
parties.
10.1. The   motive   for   the   crime   was   established   by   the
prosecution   from   the   dying   declaration   of   the
deceased, and the deposition of the P.W.6 ­ son of
deceased. Chandu – P.W.6 has deposed that, on the
date of the incident, the Accused/ Appellant No.1 –
Dayaram had abused and beaten him up and then
picked up an axe to assault him, when he ran away.
The assault took place since the buffaloes belonging to
Chandu   had   got   mixed   up   with   the   buffaloes   of
Appellant No.1 ­ Dayaram. Thereafter, Chandu – P.W.6
along with his father – Ghansu went to lodge a Report
at the Ishanagar Police Station. While returning from
the Police Station, appellant No.1 attacked his father
with a lathi on his head, while Appellant No.2 attacked
Chandu – P.W.6 on his hand with a lathi. P.W.6 then
ran to inform Sullu and others about the incident.
9
P.W.6 – Chandu returned to the site of occurrence, and
saw his father – Ghansu lying on a cot, surrounded by
Sullu and Balwant Singh – P.W.4, who then took him
to Ishanagar Police Station.
The motive behind the attack is established from
the evidence of P.W.6 ­ Chandu.
10.2. The F.I.R was lodged by the deceased and bears his
thumb impression. The F.I.R is treated as the 1st dying
declaration of the deceased.
10.3. The   deceased   was   admitted   to   the   Primary   Health
Centre, Ishanagar. The deceased gave his 2nd  Dying
Declaration before the Executive Magistrate – P.W.19.
10.4. The examination­in­chief of P.W.s 3, 4, 7, 8, 9 and 15
records   that   on   the   date   of   the   incident,   they   had
heard the cries  of the  deceased. The  deceased was
found lying in the canal in an injured condition. The
deceased told them of the attack by the assailants.
These prosecution witnesses took the deceased to the
hospital.
From their examination­in­chief it is evident that
the deceased was conscious and, in a state to lodge the
F.I.R.   In   their   cross­examination,   these   witnesses
10
denied having any knowledge about the persons who
attacked   the   deceased.   They   were   declared   hostile
during their cross­examination. The testimony, prior to
cross­examination can be relied upon.
Reliance is placed on the decisions of this Court
in  Bhagwan   Singh  v.   State   of   Haryana2
,   Rabindra
Kumar Dey v. State of Orissa3 and Syad Akbar v. State
of   Karnataka,4 wherein   it   has   been   held   that   the
evidence of a prosecution witness cannot be rejected in
toto, merely because the prosecution witnesses turned
hostile.   The   evidence   of   such   witnesses   cannot   be
treated as effaced or washed off the record altogether
but the same can be accepted to the extent that their
version is found to be dependable on careful scrutiny.
This Court in Khujji v. State of M.P,5
 in paragraph
6 of the Judgment held that:
“6…The evidence of PW 3 Kishan Lal
and   PW   4   Ramesh   came   to   be
rejected   by   the   trial   court   because
they   were   declared   hostile   to   the
prosecution   by   the   learned   Public
Prosecutor as they refused to identify
the appellant and his companions in
the   dock   as   the   assailants   of   the
deceased.   But   the   counsel   for   the
2 (1976) 1 SCC 389.
3 (1976) 4 SCC 233.
4 (1980) 1 SCC 30.
5 (1991) 3 SCC 627.
11
State is right when he submits that
the evidence of a witness, declared
hostile, is not wholly effaced from the
record and the part of the evidence
which is otherwise acceptable can be
acted upon.”
(emphasis supplied)
This   position   in   law   was   reiterated   in  Vinod
Kumar v. State of Punjab6
, wherein the court held that :
“31.  The   next   aspect   which   requires   to   be
adverted   to   is   whether   testimony   of   a
hostile witness that has come on record
should be relied upon or not. Mr. Jain,
learned Senior Counsel for the appellant
would contend that as PW 7 has totally
resiled   in   his   cross­examination,   his
evidence is to be discarded in toto. On a
perusal   of   the   testimony   of   the   said
witness,  it   is   evincible   that   in
examination­in­chief,   he   has   supported
the prosecution story in entirety and in
the cross­examination, he has taken the
path of prevarication. In Bhagwan Singh
v.   State   of   Haryana7
,   it   has   been  laid
down   that   even   if   a   witness   is
characterised   as   a   hostile   witness,   his
evidence is not completely effaced. The
said evidence remains admissible in the
trial and there is no legal bar to base a
conviction   upon   his   testimony,   if
corroborated   by   other   reliable
evidence…”
(emphasis supplied)
The F.I.R lodged by the deceased was prompt. As
per   the   statement   of   the   deceased,   the   incident
6 (2015) 3 SCC 220.
7 (1976) 1 SCC 389.
12
occurred at 3:00 p.m., and the F.I.R was lodged at
4:20 p.m. by the deceased. The distance between the
Police Station and the site of occurrence is about 4
kilometres. The F.I.R was lodged with promptness and
the   appellants   were   named   in   the   F.I.R   along   with
details of their weapons.
As per Section 32(1) of the Evidence Act, the F.I.R
should be treated as a Dying Declaration.
This Court in Dharam Pal & Ors. v. State of U.P,8
held that :
“17… The report dictated by the deceased
fully satisfied all the ingredients for being
made admissible as a dying declaration.
To ascertain this aspect, we may refer to
some of the general propositions relating
to a dying declaration. Section 32(1) of the
Indian   Evidence   Act   deals   with   dying
declaration and lays down that when a
statement is made by a person as to the
cause of his death, or as to any of the
circumstances   of   the   transaction   which
resulted in his death, such a statement is
relevant   in   every   case   or   proceeding   in
which   the   cause   of   the   person’s   death
comes   into   question.   Further,   such
statements   are   relevant   whether   the
person who made them was or was not at
the time when they were made under the
expectation of death and whatever may be
the nature of the proceedings in which the
cause of his death comes into question.
18.   The   principle   on   which   a   dying
declaration   is   admissible   in   evidence   is
8 (2008) 17 SCC 337.
13
    indicated in the Maxim “    Nemo Moriturus
Praesumitur Mentire”, which means that a
man will not meet his maker with a lie in
his mouth. Thus it is clear that a dying
declaration may be relating to :­
a) As to the cause of death of the
deceased
b) As to “any of the circumstances of
the transaction” which resulted in
the death of the deceased”
“20. …If we look at the report dictated by
the deceased in the light of the aforesaid
propositions, it emerges that the  names
of   the   accused   and   the   important
features   of  the   case  have   been   clearly
mentioned   in   the   report.   It   contains   a
narrative   by   the   deceased   as   to   the
cause of his death, which finds complete
corroboration from the testimony of eyewitnesses and the medical evidence on
record...”
(emphasis supplied)
From   the   testimonies   of   P.W.3,   P.W.4,   P.W.7,
P.W.8, P.W.9 and P.W.15, prior to cross­examination
and the evidence of the Executive Magistrate ­ P.W.19
who recorded the dying declaration of the deceased in
the Hospital and P.W.14 – Dr. Ramakant Chaturvedi,
it is evident that the deceased was conscious, and in a
state to give a dying declaration.
14
The F.I.R lodged by the deceased clearly states
the   names   of   both   the   Appellants,   as   being   the
assailants, and gives clear details of the incident.
10.5. The Learned Counsel for the Appellants contended that
the   second   dying   declaration,   recorded   by   the
Executive   Magistrate   ­   P.W.19   did   not   contain   the
thumb impression of the deceased, and hence could
not be relied upon. The Executive Magistrate ­ P.W.19
has   stated that  the  signature  or  thumb  impression
could not be taken since there were injuries on both
his hands. P.W.17 ­ Dr. Hari Agrawal who conducted
the post mortem on the body of the deceased.
Reliance is placed on the decision of this Court in
Sukanti Moharana v. State of Orissa9 wherein the Court
took the view that there is no reason why a dying
declaration   which   is   otherwise   found   to   be   true,
voluntary and correct should be rejected only because
the person who recorded the dying declaration could
not affix his signatures or thumb impressions on the
dying declaration.
9 (2009) 9 SCC 163.
15
11. Considering the totality of the evidence including the two
dying declarations made by the deceased, which are both
consistent   with   each   other   and   the   ocular   evidence   is
corroborated by the medical evidence, we are satisfied that
the   prosecution   has   proved   the   case   beyond   reasonable
doubt. The chain of circumstances is complete. We affirm
the Judgment passed by the Sessions Court and the High
Court.
In view of the aforesaid, the appeal fails and is hereby
dismissed.
..….……..........................J.
(INDU MALHOTRA)
…..……...........................J.
(R. SUBHASH REDDY)
New Delhi
November 7, 2019.

16

Exception 4 to Section 300 IPC is attracted only when there is a fight or quarrel which requires mutual provocation and blows by both sides in which the offender does not take undue advantage. Therefore, in the facts and circumstances of the case, the High Court has materially erred in applying Exception 4 to Section 300 IPC by holding that it was not a planned crime and there was no prior intention and it took place in the heat of passion on the spur of moment. Considering the material/evidence on record discussed hereinabove, we are of the firm opinion that the case falls underClause fourthly to Section 300 IPC and, therefore, the Trial Court was right in convicting the accused for the offence punishableunder Section 302 IPC, more particularly, when the accused fired from a country­made firearm on the deceased from a close range. By the accused firing from a close range, the accused was supposed to know that it is so imminently dangerous that itmust, in all probability, cause death or such bodily injury as is likely to cause death.

 Exception   4   to   Section   300   IPC   is attracted only when there is a fight or quarrel which requires mutual   provocation   and   blows   by   both   sides   in   which   the offender does not take undue advantage. 

Therefore, in the facts and circumstances of the case, the High   Court   has   materially   erred   in   applying   Exception   4   to Section 300 IPC by holding that it was not a planned crime and there was no prior intention and it took place in the heat of passion on the spur of moment. Considering   the   material/evidence   on   record   discussed hereinabove, 
we are of the firm opinion that the case falls underClause fourthly to Section 300 IPC and, therefore, the Trial Court was right in convicting the accused for the offence punishableunder Section 302 IPC, more particularly, when the accused fired from a country­made firearm on the deceased from a close range. By   the   accused   firing   from   a   close   range,   the   accused   was supposed to know  that it is so imminently dangerous that itmust, in all probability, cause death or such bodily injury as  is likely to cause death.  


1
REPORTABLE
IN THE SUPREME COUR OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1670 OF 2019
[Arising out of SLP (Crl.) No. 1299 of 2016]
Awadhesh Kumar .. Appellant
Versus
State of U.P. & Anr. .. Respondents
J U D G M E N T
M. R. SHAH, J.
1. Leave granted.
2. Feeling   aggrieved   and   dissatisfied   with   the   impugned
judgment and order dated 18.12.2015 passed by the High Court
of Judicature at Allahabad at Lucknow Bench in Criminal Appeal
No. 2517 of 2009 by which the High Court has been pleased to
allow the appeal preferred by the original accused partly and has
converted the conviction from Section 302 IPC to Section 304
Part I IPC, the original complainant has preferred this appeal.
2
3. Brief   facts   of   the   case   of   the   prosecution   was   that   the
complainant Awadesh Kumar lodged an FIR at Police Station
Khiri, District Lakhimpur Kheri on 11.07.2006 at 18:45 hours
alleging   therein   that   on   11.07.2006   at   about   5:30   p.m.   his
mother Smt. Lajjawati was making complaint to Ravinder Verma
(original accused No. 1 ­ respondent No. 2 herein) regarding bad
behaviour of his nephew Vishun Kumar.   At that time, Sudhir @
Ramaudh,   Rakesh,   Vishun   Kumar   were   also   present   there.
When  the  mother  of  the   complainant  was  making  complaint,
meanwhile all the above named four persons started quarrelling
with   his   mother.   In   the   meanwhile,   the   brother   of   the
complainant   Anoop   Kumar   and   his   father   Ram   Lakhan   also
reached there. Then all the four accused persons were asked by
these persons to go away from there. Feeling annoyed by this
conduct of the complainant side, Vishnu Kumar, Rakesh Kumar
and   Sudhir   @   Ramaudh   exhorted   Ravinder   to   fire   at   the
deceased, Ravinder, with his country­made pistol fired on the
complainant’s mother. The complainant along with other persons
took his injured mother to police station and lodged the FIR.
4. That, initially the case was registered under Section 307,
504, 506/34 IPC, however, subsequently on the death of Smt.
3
Lajjawati on 11.07.2006, the case was converted into one under
Section 302 IPC. After investigation, the Investigating Officer filed
the charge­sheet against all the four named accused persons,
including respondent No. 2 herein.  All of them were tried by the
learned   Court   of   Sessions   for   the   offence   punishable   under
Section 302 IPC.  The learned Trial Court convicted respondent
No. 2 herein (Ravinder) as the specific role of fire on the deceased
was attributed to him.     The learned Trial Court acquitted the
other   three   accused   persons.   The   Respondent   No.2   herein
(original   accused   no.1)   feeling   dissatisfied   with   the   order   of
conviction   passed   by   the   learned   Trial   Court   convicting   him,
preferred   Criminal   Appeal   before   the   High   Court.   By   the
impugned judgment and order, the High Court has modified the
conviction from that of punishable under Section 302 IPC to
Section 304 Part I IPC and sentenced him to undergo rigorous
imprisonment   for   ten   years   with   a   fine   of   20,000/­.   Feeling
aggrieved by the impugned judgment and order passed by the
High Court modifying the conviction from Section 302 IPC to 304
Part I IPC, the original complainant has preferred the present
appeal.
4
5. Learned   Advocate   on   behalf   of   the   appellant   ­   original
complainant has vehemently submitted that the High Court has
committed a grave error in modifying the conviction from that of
Section 302 IPC to that of under Section 304 Part I IPC. 
6. It is further submitted by the learned Advocate appearing on
behalf of the original complainant that, as such, the accused
fired   on   the   deceased   from   a   close   range,   due   to   which   the
deceased   sustained   serious   injuries   and   ultimately   died   and,
therefore, the case would fall under clause fourthly to Section
300 IPC.   It is submitted that, therefore, when the case falls
under Clause fourthly to Section 300 IPC, the act of the accused
would be culpable homicide amounting to murder.     Learned
Advocate appearing on behalf of the original complainant has
submitted that the High Court has materially erred in holding
that the offence committed by the accused Ravinder would come
within Exception 4 to Section 300 IPC by observing that it was
not a planned crime and there was no prior intention and it took
place   in   the   heat   of   passion   on   the   spur   of   moment.     It   is
submitted by the learned Advocate appearing on behalf of the
original complainant that Exception 4 to Section 300 IPC would
be attracted only when there is a fight or quarrel which requires
5
mutual   provocation   and   blows   by   both   sides   in   which   the
offender does not take undue advantage.   In support of his above
submission, learned Advocate appearing on behalf of the original
complainant has heavily relied upon the decision of this Court in
the case of State of Madhya Pradesh v. Shivshankar (2014) 10
SCC 366.  It is submitted that, in the present case, there was no
blow by the complainant side of the deceased.   The complainant
side and the deceased did not have any weapon.   The accused
came   with   a   country­made   firearm   after   there   was   some
altercation/exchange of words by his cousin with the deceased.
It   is   submitted   that   therefore   the   case   would   not   fall   under
Exception 4 to Section 300 IPC.  It is submitted that therefore the
High Court has materially erred in converting the conviction from
the offence punishable under Section 302 IPC to that of Section
304 Part I IPC. 
7. Learned   Advocate   appearing   on   behalf   of   the   original
accused No. 1 – respondent No. 2 herein has made strenuous
efforts to support the impugned judgment and order passed by
the High Court ultimately convicting the accused for the offence
under Section 304 Part I IPC.   It is submitted by the learned
Advocate   appearing   on   behalf   of   respondent   No.   2   –   original
6
accused No. 1 that the High Court has rightly observed that it
was not a planned crime and there was no prior intention and it
took place in the heat of passion on the spur of moment.  It is
submitted   by   the   learned   Advocate   appearing   on   behalf   of
respondent   No.   2   that   therefore   the   High   Court   has   rightly
observed that Exception 4 to Section 300 IPC would be attracted
and,   therefore,   the   High   Court   has   rightly   converted   the
conviction from that of Section 302 IPC to that of Section 304
Part I IPC.
7.1 Learned Advocate appearing on behalf of respondent No. 2
has taken us through the finding recorded by the learned Trial
Court   while   acquitting   the   other   three   accused   and   has
submitted that while acquitting the other three accused persons,
the learned Trial Court has clearly observed that there was no
prior   intention   to   commit   the   murder   with   pre­planning   and
rather the incident took place all of a sudden, when Lajjawati
went to complain to Ravinder.   It is submitted that the finding
recorded by the learned Trial Court has gone unchallenged.    It
is submitted that, therefore, the case would fall under Exception
4 to Section 300 IPC and therefore also the High Court has
7
rightly converted the conviction for the offence punishable under
Section 302 IPC to that of Section 304 Part I IPC. 
8. We   have   heard   the   learned   counsel   appearing   for   the
respective parties at length.   We have also gone through and
considered the findings recorded by the learned Trial Court as
well as the High Court.
8.1 At the outset, it is required to be noted that the learned
Trial Court convicted respondent No. 2 herein – original accused
No. 1 for the offence punishable under Section 302 IPC.  By the
impugned judgment and order, the High Court converted the
conviction for the offence punishable under Section 302 IPC to
that of Section 304 Part I IPC on the grounds that:
(i) it was not a planned crime;
(ii) there was no prior intention; and
(iii) it took place in the heat of passion on the spur of moment.
Therefore, as per the High Court, the case would fall under
Exception   4   to   Section   300   IPC.     However,   considering   the
material/evidence on record and considering the deposition of
the   original   complainant   and   considering   the   case   of   the
prosecution proved, the incident in question that took place half
an hour after there was abusive language used by the cousin of
8
original   accused   No.   1   –   Ravinder   with   the   deceased.    That,
thereafter, respondent No. 2 herein – original accused No. 1 came
with others with a country­made firearm and at that time the
deceased made a grievance with respect to the abusive language
used by Vishun Kumar (cousin of original accused No. 1) and, at
that time, respondent No. 2 – original accused No. 1 started
abusing.  At that time, the deceased and others told them not to
use abusive words in future and told them to go away.  At that
time, respondent No. 2 – original accused No. 1 told the deceased
and others not to challenge him and he told that “Do you not
know that I have been convicted, now I do not have any kind of
fear”.  Thereafter, Ravinder – respondent No. 2 – original accused
No. 1 fired from the close range.  None of the persons from the
complainant   side,   including   the   deceased,   was   having   any
weapon.  There was no further grave and sudden provocation by
the deceased which led to the accused to fire on the deceased
and, that too, from a very close range.
8.2 As   observed   by   this   Court   in   the   case   of  Shivshankar
(supra), intention is a matter of inference and when death is as a
result of intentional firing, intention to cause death is patent
unless the case falls under any of the exceptions.  It is further
9
observed   and   held   that   Exception   4   to   Section   300   IPC   is
attracted only when there is a fight or quarrel which requires
mutual   provocation   and   blows   by   both   sides   in   which   the
offender does not take undue advantage.
8.3 In   the   case   of  Bhagwan   Munjaji   Pawade   v.   State   of
Maharashtra (1978) 3 SCC 330, in paragraph 6, this Court has
observed and held as under:
“6. ............ It is true that some of the conditions
for   the   applicability   of   Exception   4   to Section
300 exist here, but not all. The quarrel had broken
out suddenly, but there was no sudden fight between
the deceased and the appellant. 'Fight' postulates a
bilateral transaction in which blows are exchanged.
The deceased was unarmed. He did not cause any
injury   to   the   appellant   or   his   companions.
Furthermore, no less than three fatal injuries were
inflicted by the appellant with an axe, which is a
formidable weapon on the unarmed victim. Appellant
is therefore, not entitled to the benefit of Exception 4,
either.”
8.4 The   above   observations   fully   support   the   view   that   the
present case falls under Section 302 IPC. 
8.5 Therefore, in the facts and circumstances of the case, the
High   Court   has   materially   erred   in   applying   Exception   4   to
Section 300 IPC by holding that it was not a planned crime and
there was no prior intention and it took place in the heat of
passion on the spur of moment.
10
8.6 Considering   the   material/evidence   on   record   discussed
hereinabove, we are of the firm opinion that the case falls under
Clause fourthly to Section 300 IPC and, therefore, the Trial Court
was right in convicting the accused for the offence punishable
under Section 302 IPC, more particularly, when the accused fired
from a country­made firearm on the deceased from a close range.
By   the   accused   firing   from   a   close   range,   the   accused   was
supposed to know  that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is
likely to cause death.
9. Now, so far as the submission on behalf of the accused
relying upon some of the observations made by the Trial Court
while   acquitting   the   other   three   accused   is   concerned,   it   is
required to be noted that those observations were made by the
learned Trial Court while considering the common intention of the
other accused and therefore benefit of such observations would
not be available to original accused No. 1 when it has come on
record and it has been proved that it was the original accused No.
1 who fired at the deceased and, that too, from a very close range.
10. In view of the above and for the reasons stated above, the
present appeal succeeds.   The impugned judgment and order
11
passed by the High Court modifying the conviction for the offence
punishable under Section 302 IPC to that of Section 304 Part I
IPC is hereby quashed and set aside.   The judgment passed by
the learned Trial Court convicting the respondent No. 2 – original
accused No. 1 for the offence punishable under Section 302 IPC is
hereby restored.  Now, respondent No. 2 – original accused No. 1
to surrender before the concerned Court to undergo the sentence
as imposed by the learned Trial Court, within a period of three
months from today.
........................................J.
(ARUN MISHRA)
........................................J.
(M. R. SHAH)
........................................J.
(S. RAVINDRA BHAT)
New Delhi,

November 08, 2019.

inconsistency between the medical evidence and the oral testimonies of the witnesses -no blood on the weapon and the prosecution was unable to prove that there were any finger prints of the Respondent on the weapon.-the Respondent was not afforded an opportunity as provided in Rules 179 and 180 of the Rules - summory courtMartial order is liable to be set aside. On 02.06.2011, at about 07:45 hrs, he assaulted Subedar/Master Technical (Communication) Satyendra Singh Yadav, with a Talwar (grass cutting tool) without any provocation. Initially, the Respondent hit Subedar/Master Technical (Communication) Satyendra Singh Yadav on his head from behind and when Subedar/Master Technical (Communication) Satyendra Singh Yadav turned around, the Respondent hit on his forehead with the Talwar. When the Respondent attempted to give a third blow, Naib Subedar A. P. Singh intervened. = The prosecution alleges that the Respondent refused to cross-examine the witnesses though he was given an opportunity to do so. By an order dated 23.07.2012, the Summary Court Martial found the respondent guilty and imposed the sentence of dismissal from service. = The Tribunal held that there was an irreconcilable inconsistency between the medical evidence and the oral testimonies of the witnesses. According to the medical certificate, the injury caused to Subedar/Master Technical Satyendra Singh Yadav was a compressed injury whereas the Respondent is alleged to have wielded a grass cutting tool which is sharp-edged. The Tribunal also found that there was no blood on the weapon and the prosecution was unable to prove that there were any finger prints of the Respondent on the weapon. The Tribunal agreed with the Respondent that the Summary Court Martial was conducted in a hasty manner. The entire enquiry was completed within a period of 45 minutes. After perusing the record of the summary of evidence, the Tribunal was of the opinion that the signatures of the Respondent appear to have been taken before the proceedings were held. The Tribunal found that the signatures of the Respondent were at the right-side corner at the bottom of every page. On some pages where the depositions of the witnesses concluded at the middle of the page, the signature of the Respondent was found at the right side at the bottom of the page. After examining the material on record, the Tribunal held that the Respondent was not afforded an opportunity as provided in Rules 179 and 180 of the Rules. The Tribunal was of the further opinion that the procedure prescribed in Rules 115 and 116 of the Rules which deals with recording the plea of guilt of a delinquent was not followed. After a detailed discussion, the Tribunal ruled in favour of the Respondent by holding that the imposition of the penalty of dismissal was with a pre-determined mind and was arrived at without following the procedure prescribed by law.= Apex court held that It is settled law that if two views can be reached, the one that leads to acquittal has to be preferred to the other, which would end in conviction. That apart, there is a clear violation of Rules 179 and 180 of the Rules and the respondent was deprived of an opportunity to defend himself. For the aforementioned reasons, the judgment of the Tribunal is upheld and the Appeal is dismissed.

inconsistency between the medical evidence and the oral testimonies of the witnesses -no blood on the weapon and the prosecution was unable to prove that there were any finger prints of the Respondent on the weapon.-the Respondent was not afforded an opportunity as provided in Rules 179 and 180 of the Rules - summory courtMartial order is liable to be set aside.

On 02.06.2011, at about 07:45 hrs, he assaulted Subedar/Master Technical (Communication) Satyendra Singh Yadav, with a Talwar (grass cutting tool) without any provocation. Initially, the
Respondent hit Subedar/Master Technical (Communication) Satyendra Singh Yadav on his head from
behind and when Subedar/Master Technical (Communication) Satyendra Singh Yadav turned around,
the Respondent hit on his forehead with the Talwar. When the Respondent attempted to give a third blow, Naib Subedar A. P. Singh intervened. =

The prosecution alleges that the
Respondent refused to cross-examine the witnesses though he was given an opportunity to do so.
By an order dated 23.07.2012, the Summary Court Martial found the respondent guilty and imposed the sentence of dismissal from service. =

The Tribunal  held that there was an
irreconcilable inconsistency between the medical evidence and the oral testimonies of the witnesses.
According to the medical certificate, the injury caused to Subedar/Master Technical Satyendra Singh Yadav was a compressed injury whereas the Respondent is alleged to have wielded a grass cutting tool which is sharp-edged.
The Tribunal also found that there was no blood on the weapon and the prosecution was unable to prove that there were any finger prints of the Respondent on the weapon. 
The Tribunal agreed with the Respondent that the Summary Court Martial was conducted in a hasty
manner. The entire enquiry was completed within a period of 45 minutes. After perusing the record of the summary of evidence, the Tribunal was of the opinion that the signatures of the Respondent appear to have been taken before the proceedings were held. 
The Tribunal found that the signatures of the Respondent were at the right-side corner at the bottom of every page. On some pages where the depositions of the witnesses concluded at the middle of the page, the signature of the Respondent was found at the right side at the bottom of the page. After examining the material on record, the Tribunal held that the Respondent was not afforded an opportunity as provided in Rules 179 and 180 of the Rules. The Tribunal was of the further opinion that the procedure prescribed in Rules 115 and 116 of the Rules which deals with recording the plea of guilt of a delinquent was not followed. After a detailed discussion, the Tribunal ruled in favour of the Respondent by holding that the imposition of the penalty of dismissal was with a
pre-determined mind and was arrived at without following the procedure prescribed by law.=
Apex court held that
It is settled law that if two views can be reached, the one that leads to acquittal has to be preferred to the other, which would end in conviction. That apart, there is a clear violation of Rules 179 and 180 of the Rules and the respondent was deprived of an opportunity to defend himself. For the aforementioned reasons, the judgment of the Tribunal is upheld and the Appeal is dismissed.


Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.1627 of 2019
(@ Diary No.1052 of 2018)
Union of India & Ors.
.... Appellant(s)
Versus
Sepoy Pravat Kumar Behuria.
 …. Respondent
(s)
J U D G M E N T
L. NAGESWARA RAO, J.
1. This Appeal is filed against the judgment of the
Armed Forces Tribunal, Regional Bench, Lucknow
(hereinafter, ‘the Tribunal’) by which the order of
dismissal of the Respondent dated 23.07.2012 was set
aside.
2. The Respondent was enrolled in the Indian Army as
Sepoy in the Unit 981 AD Regiment Workshop on
02.02.2002. He was posted at Jamnagar on 01.06.2011
and was scheduled to be on the third night duty from
04:00 hrs to 06:00 hrs. Thus, he was excused from
physical training parade. On 02.06.2011, at about 07:45
1
hrs, he assaulted Subedar/Master Technical
(Communication) Satyendra Singh Yadav, with a Talwar
(grass cutting tool) without any provocation. Initially, the
Respondent hit Subedar/Master Technical
(Communication) Satyendra Singh Yadav on his head from
behind and when Subedar/Master Technical
(Communication) Satyendra Singh Yadav turned around,
the Respondent hit on his forehead with the Talwar.
When the Respondent attempted to give a third blow,
Naib Subedar A. P. Singh intervened. Subedar/Master
Technical (Communication) Satyendra Singh Yadav was
immediately shifted to Gokul Hospital, Jamnagar and a
surgery was conducted by a Neurosurgeon as his skull
bone was fractured leading to internal bleeding and blood
clotting in the brain.
3. The Court of Inquiry was convened against the
Respondent by Colonel Sanjay Khanna, Commanding
Officer, 48 AD Regiment on 03.06.2011 to investigate into
the circumstances which led the Respondent using
criminal force against Subedar/Master Technical
(Communication) Satyendra Singh Yadav. Nine witnesses
were examined and the Respondent declined to cross2 | P a g e
examine the witnesses though he was given an
opportunity. The Respondent also did not make any
statement in his defence. After appreciating the material
on record, the Court of Inquiry recommended action to be
initiated against the Respondent.
4. The proceedings for recording the summary of
evidence were initiated by Lt. Col. Amarvir Singh. Twelve
witnesses were examined on behalf of the prosecution
between 10.06.2011 and 15.06.2011. According to the
Appellants, the Respondent declined to cross-examine the
prosecution witnesses. The Respondent had voluntarily
given a statement that he hit the victim with a grass
cutting tool without any provocation. Thereafter, on
20.10.2011, additional summary of evidence was
recorded. Two additional witnesses were examined and
witness No. 2 and 12 were re-examined in the presence of
the Respondent. The prosecution alleges that the
Respondent refused to cross-examine the witnesses
though he was given an opportunity to do so.
5. By an order dated 23.07.2012, the Summary Court
Martial found the respondent guilty and imposed the
sentence of dismissal from service.
3 | P a g e
6. The order dated 23.07.2012 was questioned by the
Respondent before the Tribunal. The Respondent
contended that he was kept in close arrest from
02.06.2011 to 05.10.2011 without the permission from
the Chief of the Army Staff. It was further contended that
he was not given an opportunity to participate in the
Court of Inquiry and during the recording of summary of
evidence. He complained that the Summary Court Martial
was conducted in a hasty manner. The entire proceedings
before the Court Martial was completed within a period of
45 minutes. It was further argued on his behalf that the
oral evidence was inconsistent with the medical evidence.
The Respondent’s case was that there was no incised
wound on the head of the victim though the Respondent
is alleged to have used a Talwar which is a sharp-edged
weapon. He submitted before the Tribunal that noncompliance of the provisions of the Army Act, 1950 and
the Army Rules, 1954 (hereinafter, ‘the Rules’) vitiated
the Summary Court Martial proceedings.
7. The Tribunal accepted the submissions made on
behalf of the Respondent and held that there was an
irreconcilable inconsistency between the medical
4 | P a g e
evidence and the oral testimonies of the witnesses.
According to the medical certificate, the injury caused to
Subedar/Master Technical Satyendra Singh Yadav was a
compressed injury whereas the Respondent is alleged to
have wielded a grass cutting tool which is sharp-edged.
The Tribunal also found that there was no blood on the
weapon and the prosecution was unable to prove that
there were any finger prints of the Respondent on the
weapon. The Tribunal agreed with the Respondent that
the Summary Court Martial was conducted in a hasty
manner. The entire enquiry was completed within a
period of 45 minutes. After perusing the record of the
summary of evidence, the Tribunal was of the opinion that
the signatures of the Respondent appear to have been
taken before the proceedings were held. The Tribunal
found that the signatures of the Respondent were at the
right-side corner at the bottom of every page. On some
pages where the depositions of the witnesses concluded
at the middle of the page, the signature of the
Respondent was found at the right side at the bottom of
the page. After examining the material on record, the
Tribunal held that the Respondent was not afforded an
5 | P a g e
opportunity as provided in Rules 179 and 180 of the
Rules. The Tribunal was of the further opinion that the
procedure prescribed in Rules 115 and 116 of the Rules
which deals with recording the plea of guilt of a
delinquent was not followed. After a detailed discussion,
the Tribunal ruled in favour of the Respondent by holding
that the imposition of the penalty of dismissal was with a
pre-determined mind and was arrived at without following
the procedure prescribed by law.
8. We have heard Mr. R. Balasubramanian, learned
Senior Counsel for the Appellants and Mr. Sudhanshu S.
Pandey, learned counsel appearing for the Respondent.
The Court of Inquiry was ordered against the Respondent
to investigate the circumstances under which he used
criminal force against Subedar/Master Technical,
Satyendra Singh Yadav. The Court of Inquiry assembled
on 03.06.2011. During the Court of Inquiry, the
statement of the Respondent was recorded in which he
stated that he was not provided liquor at 20:00 hrs on
01.06.2011 by Subedar/Master Technical Satyendra Singh
Yadav. He was angry about the refusal of liquor due to
which he attacked the victim by using Talwar on the
6 | P a g e
morning of 02.06.2011. Other witnesses, including the
victim Subedar/Master Technical Satyendra Singh Yadav
were examined in the Court of Inquiry.
9. We have perused the original record relating to the
summary of evidence which was recorded between
10.06.2011 to 15.06.2011. The signatures of the
Respondent are found on the right-hand side at the
bottom of each page, at the same place on each page.
The manner in which the signatures of the officer who
recorded the summary of evidence and the other officers
were put on certain pages would clearly show that the
signature of the Respondent was taken in advance on
blank papers. The statement of the Respondent was
recorded under Rule 23 (2) of the Rules. Lt. Col. Amarvir
Singh who recorded the summary of evidence certified
that the summary of evidence containing 40 pages were
recorded by him in the presence of the Respondent and
that Clauses (1), (2), (3) and (4) of Rule 23 have been
complied with while recording the summary of evidence.
Even on this certificate, whereas the signature of Lt. Col.
Amarvir Singh is at the center of the page, the signature
of the Respondent is found at the right-hand side at the
7 | P a g e
bottom of the page. The second half of the page is left
blank. A bare perusal of the recording would indicate that
the signatures of the Respondent were obtained and filled
up with the depositions of the witnesses later. The
contention of the Appellant that the summary of evidence
was recorded in the presence of the Respondent is not
acceptable. We have also perused the additional
summary of evidence which was recorded on 20.10.2011.
The original record discloses that the signatures of the
Respondent were taken earlier as there is a huge gap on
certain pages between the place where the depositions
have ended and the place where the signature of the
Respondent is found. The certificate given by the officer
recording additional summary of evidence on 20.10.2011
actually ends with his signature at the center of the page
and the signature of the Respondent was found at the
bottom of the page without anything being written in
between.
10. After the judgment was reserved, the learned Senior
Counsel appearing for the Union of India, handed over the
original record pertaining to the Court of Inquiry. The
proceedings of the Court of Inquiry were conducted
8 | P a g e
between 04.06.2011 and 08.06.2011 during which the
statements of the Respondent and the other witnesses
were recorded. The signature of the Respondent is found
on the left-hand side at the bottom of each page. The
statement of witness No.3, Naib Subedar A. P. Singh ends
at the middle of page No.9 of the original record. The
signature of the Respondent is found at the left-hand side
at the bottom of the said page. Major Hemant Juneja,
who was the Presiding Officer of the Court of Inquiry
appears to have signed at the bottom of each page on the
right-hand side. On some pages where the deposition
ended at the center of the page, signature of Major
Hemant Juneja is found. Resultantly, on some pages, the
signature of the Presiding Officer i.e. Major Hemant Juneja
is found at the appropriate place i.e. immediately after
the deposition has ended, as well as at the right-hand
side of the bottom of the page.
11. The Summary Court Martial was held on 23.07.2012.
The Respondent was charged for committing an offence
under Section 326 of the Indian Penal Code, 1860 by
causing grievous hurt to Subedar/Master Technical
Satyendra Singh Yadav. We agree with the Tribunal that
9 | P a g e
the entire Summary Court Martial was held in a hasty
manner. The enquiry commenced at 12.45 p.m. and
concluded at 1.30 p.m. and the sentence was imposed at
2.30 p.m.
12. It is clear from the record that Respondent was not
given an opportunity to cross examine the witnesses
whose statements were recorded in the summary of
evidence. The proceedings of Court of Inquiry, recording
of summary of evidence and the Summary Court Martial
have been conducted without following the procedure
prescribed by the Act and the Rules.
13. The Tribunal examined the evidence on record to
hold that the prosecution failed to establish the guilt of
the Respondent. The irreconcilable inconsistency
between the medical evidence and ocular testimony, lack
of scientific evidence like finger prints on the weapon and
the absence of blood on the weapon have been taken into
account by the Tribunal to hold that the charge against
the Respondent was not proved.
14. It is trite law that judgments of acquittal should not
be disturbed unless there are substantial or compelling
reasons. The substantial or compelling reasons to discard
10 | P a g e
a judgment of acquittal were examined by this Court in
Ghurey Lal v. State of Uttar Pradesh
1 which are as
follows:
” 1…………
i) The trial Court's conclusion with regard to the facts is
palpably wrong;
ii) The trial Court's decision was based on an erroneous
view of law;
iii) The trial Court's judgment is likely to result in "grave
miscarriage of justice";
iv) The entire approach of the trial Court in dealing with
the evidence was patently illegal;
v) The trial Court's judgment was manifestly unjust and
unreasonable;
vi) The trial Court has ignored the evidence or misread
the material evidence or has ignored material documents
like dying declarations/ report of the Ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive.
2. The Appellate Court must always give proper weight
and consideration to the findings of the trial Court.
3. If two reasonable views can be reached - one that leads
to acquittal, the other to conviction - the High Courts
/appellate Courts must rule in favour of the accused.”
15. Applying the law laid down by this Court as stated
above, we are of the opinion that the judgment of the
Tribunal should not be interfered with.
1 (2008) 10 SCC 450
11 | P a g e
16. We have carefully examined the evidence. A view
that the respondent is guilty is possible on a scrutiny of
the oral evidence. However, the relevant factors taken
into account by the Tribunal present another probable
view. It is settled law that if two views can be reached,
the one that leads to acquittal has to be preferred to the
other, which would end in conviction. That apart, there is
a clear violation of Rules 179 and 180 of the Rules and
the respondent was deprived of an opportunity to defend
himself.
17. For the aforementioned reasons, the judgment of the
Tribunal is upheld and the Appeal is dismissed.
 …................................J.
 [L. NAGESWARA RAO]
…................................J.
 [HEMANT GUPTA]
New Delhi,
November 06, 2019
12 | P a g e

the High Court had addressed a letter to the Ministry of Home Affairs, Government of India to collect and ascertain information, details and records. By communication dated 20thJune 2013, the Deputy Secretary, Ministry of Home Affairs, Government of India, had informed the High Court that the mobile phones of the judicial officers were simultaneously switched off for a long time on 26th and 27th January 2013 and when the phones were active during that period, they were within the range of the tower at Forbesganj town, which indicated that the judicial officers were together in proximity to Nepal, and not at the place of their posting.= it was pointed out that the Full Court had subsequently again recommended dismissal of the judicial officers dispensing with the departmental inquiry in the exercise of power under clause (b) of the second proviso to Article 311(2) of the Constitution vide recommendation dated 13th August 2015. However, the matter is pending with the State Government and we were informed that no final order has been passed in view of the stay order dated 11th September 2015 passed by this Court. It was also initially urged and argued that the order of dismissal under clause (b) of the second proviso to Article 311(2) of the Constitution cannot be passed against the officer who has retired. We were informed that the other two officers had also retired during the pendency of the present appeals. Therefore, at best the pensionary and retirement benefits can be forfeited and denied, but an order of dismissal from service by invoking powers under clause(b) of the second proviso to Article 311(2) cannot be passed against the appellants - judicial officers. Subsequently, the counsel for the appellants - judicial officers did not press this contention as the matter is still pending before the State authorities, and the final order is yet to be passed. A challenge cannot be made in anticipation. Further, this challenge was also not the subject matter of the writ petitions in which the impugnedorder was passed and would constitute an entirely new cause of action. Counsels for the appellants - judicial officers have, accordingly, reserved their right to challenge the order if, and as and when it is passed. In view of the aforesaid position, we would not go into the merits of the said contention and leave the issue open. It is equally open to the respondents, that is, the State of Bihar and the High Court to examine this contention. 20. Recording the aforesaid, the appeals are dismissed and the stay order is vacated, albeit we clarify that the respondents, in terms of the judgment passed by the Division Bench, would be required to proceed in accordance with law. We also clarify that we have expressed no opinion on the merits of the allegations made against the three judicial officers. There would be no order as to costs.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3105 OF 2017
HARI NIWAS GUPTA ….. APPELLANT(S)
VERSUS
STATE OF BIHAR AND ANOTHER ….. RESPONDENT(S)
W I T H
CIVIL APPEAL NOS. 3106-3107 OF 2017
KOMAL RAM AND JITENDRA NATH SINGH ….. APPELLANTS
VERSUS
STATE OF BIHAR AND ANOTHER ….. RESPONDENT(S)
J U D G M E N T
SANJIV KHANNA, J.
This common judgment would dispose of the abovecaptioned appeals preferred by three judicial officers namely, Hari
Niwas Gupta, Komal Ram and Jitendra Nath Singh, who were
working as Principal Judge, Family Court, Samastipur; Chief
Judicial Magistrate, Araria; and ad-hoc Additional District and
Sessions Judge, Araria, respectively.
Civil Appeal No. 3105 of 2017 & Ors. Page 1 of 23
2. On 29th January 2013, a news item was published in a local daily
(Udghosh), that on 26th January 2013 the Nepal Police had
apprehended three judicial officers belonging to the State of Bihar
as they were allegedly found in a compromising position with three
Nepali women in a guest house at Biratnagar, Nepal. Thereupon
the judicial officers were brought to the district police station in
Nepal, but were released on account of pressure from various
circles. On learning about the incident, the High Court of
Judicature at Patna (‘High Court’ for short) had addressed the
letter dated 18th February 2013 to the District and Sessions Judge,
Purnea to submit a report in the matter. The District and Sessions
Judge vide report dated 24th February 2013 had informed that
during the inquiry the three judicial officers had denied having left
India for Nepal. Komal Ram had claimed that he was in Purnea,
and in the process of vacating his quarters on transfer. The report
had made reference to another news item published by the same
daily on 22nd February 2013, expressing regret over erroneous
reportage and that the Superintendent of Police, Araria appeared
to have held a bias against the judicial officers. After receipt of the
report, the High Court had addressed a letter to the Ministry of
Home Affairs, Government of India to collect and ascertain
information, details and records. By communication dated 20th
Civil Appeal No. 3105 of 2017 & Ors. Page 2 of 23
June 2013, the Deputy Secretary, Ministry of Home Affairs,
Government of India, had informed the High Court that the mobile
phones of the judicial officers were simultaneously switched off for
a long time on 26th and 27th January 2013 and when the phones
were active during that period, they were within the range of the
tower at Forbesganj town, which indicated that the judicial officers
were together in proximity to Nepal, and not at the place of their
posting. The hotel bill submitted and relied upon by Komal Ram to
support his claim that he was staying at a hotel in Purnea between
26th and 27th January 2013 was considered to be fabricated based
on the handwriting and Komal Ram’s signature on the bill. Further,
the hotel was not of the standard where a judicial officer of Komal
Ram’s rank would have stayed.
3. The Standing Committee of the High Court in its meeting held on
5
th February, 2014 had resolved that the judicial officers should be
placed under suspension and also that they should be dismissed
from service without an inquiry in exercise of power under clause
(b) of the second proviso to Article 311(2) of the Constitution of
India, read-with Rules 14 and 20 of the Bihar Government
Servants (Classification, Control and Appeal) Rules, 2005. At the
Full Court of the judges of the High Court held on 10th February,
2014, the recommendation of the Standing Committee was
Civil Appeal No. 3105 of 2017 & Ors. Page 3 of 23
accepted and Full Court resolution was passed for dismissal of the
judicial officers from judicial service in the State Government of
Bihar, dispensing with the disciplinary proceedings by invoking
clause (b) of the second proviso to Article 311(2) of the
Constitution of India. The recommendation of the Full Court was
accepted by the State Government and vide common order dated
12th February 2014 issued by the Governor of the State of Bihar
the judicial officers were dismissed from service.

4. The judicial officers had challenged the dismissal order by filing
separate writ petitions, which were allowed by the Division Bench
of the High Court (‘Division Bench’ for short), vide judgment dated
19th May 2015, primarily on the ground that the Full Court had
contravened clause (b) of the second proviso to Article 311(2) of
the Constitution by not recording reasons for dispensing with the
disciplinary inquiry at the time of recommending dismissal of the
judicial officers. The note relied upon by the Registry of the High
Court as purportedly recording the reasons for dispensing with the
inquiry, it was observed, did not contain any date or signatures
and lacked authenticity. Thus, the High Court had not been able to
place on record any material to show that any reasons were
recorded for dispensing with the disciplinary proceedings.
Civil Appeal No. 3105 of 2017 & Ors. Page 4 of 23
5. While setting aside the order of dismissal, in the case of the
judicial officers, dated 12th February 2014 for failure to record
reasons for dispensing with the inquiry, the Division Bench had
given the following liberty and discretion to the High Court:
“The writ petitions are, accordingly, allowed, and the
common order dated 12.02.2014 is set aside. It is made
clear that in case, the High Court intends to invoke its
power under Sub-clause (b) of the 2nd proviso to Article
311 (2) of the Constitution of India, it shall be under
obligation to record reasons, at the appropriate stage and
follow the prescribed procedure.
It is brought to our notice that two (sic- one) of the officers
have attained the age of superannuation, during the
pendency of the writ petitions. We direct that as a result of
the judgment in these writ petitions, the petitioner, who is
already in service, shall be deemed to be under
suspension, and the other two would be deemed to be
continuing in service for the limited purpose of enabling the
departmental proceedings to continue. The High Court
shall take a decision in this behalf, within a period of two
months from today. If no decision is taken in this regard,
the proceedings would lapse and the petitioners would be
entitled for all the consequential benefits, as though the
proceedings have been set aside in their entirety. If, on
the other hand, the proceedings are initiated, the
petitioners shall await the outcome thereof. While the one
who is in service shall be paid subsistence allowance, the
other two shall be paid provisional pension to the extent of
25%, forthwith.
Interlocutory application, if any, shall stand disposed of.
There shall be no order as to costs.”
6. The judicial officers have challenged this afore-quoted portion and
the liberty granted to the High Court to invoke the power under
clause (b) of the second proviso to Article 311(2) of the
Civil Appeal No. 3105 of 2017 & Ors. Page 5 of 23
Constitution at an appropriate stage with the requirement to record
reasons and follow the prescribed procedure, on the ground that
the liberty granted permits the High Court to record reasons post
the earlier order of dismissal dated 12th February 2014, which is
contrary to law and the Constitution.
7. The respondents, that is, the State of Bihar and the High Court,
have not preferred any appeal and have accepted the decision.
8. Clauses (1) and (2) of Article 311 of the Constitution, read:
311. Dismissal, removal or reduction in rank of
persons employed in civil capacities under the Union
or a State.—(1) No person who is a member of a civil
service of the Union or an all-India service or a civil service
of a State or holds a civil post under the Union or a State
shall be dismissed or removed by an authority subordinate
to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or
removed or reduced in rank except after an inquiry in
which he has been informed of the charges against him
and given a reasonable opportunity of being heard in
respect of those charges:
Provided that where it is proposed after such inquiry, to
impose upon him any such penalty, such penalty may be
imposed on the basis of the evidence adduced during such
inquiry and it shall not be necessary to give such person
any opportunity of making representation on the penalty
proposed:
Provided further that this clause shall not apply—
Civil Appeal No. 3105 of 2017 & Ors. Page 6 of 23
(a) where a person is dismissed or removed or
reduced in rank on the ground of conduct which
has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or
remove a person or to reduce him in rank is
satisfied that for some reason, to be recorded by
that authority in writing, it is not reasonably
practicable to hold such inquiry; or (c) where the
President or the Governor, as the case may be,
is satisfied that in the interest of the security of
the State it is not expedient to hold such inquiry.”
Clause (1) states that persons employed in civil services or
posts under the Union or the States or members of the all-India
service shall not be dismissed, removed or reduced in rank by an
authority subordinate to that by which he/she was appointed.
Clause (2) provides that such a person could be dismissed or
removed or reduced in rank only after an inquiry in which he has
been informed of the charges against him and after being afforded
a reasonable opportunity of being heard in respect of those
charges. The second proviso incorporates exceptions when the
need for holding an inquiry under clause (2) can be dispensed
with. Clause (b) of the second proviso to Article 311(2) can be
invoked to impose a punishment of dismissal, removal, or
reduction in rank on the satisfaction, to be recorded in writing, that
it is not reasonably practicable to conduct an inquiry before
imposing the punishment. This Court in Jaswant Singh v. State
Civil Appeal No. 3105 of 2017 & Ors. Page 7 of 23
of Punjab,
1
 relying on an earlier decision in Union of India v.
Tulsiram Patel,
2
 has affirmatively held that the obligation of the
competent authority to record reasons when passing an order
under clause (b) to the second proviso to Article 311(2) is
mandatory, and it was inter alia observed:
“5. …It was incumbent on the respondents to disclose to
the court the material in existence at the date of the
passing of the impugned order in support of the subjective
satisfaction recorded by respondent 3 in the impugned
order. Clause (b) of the second proviso to Article 311(2)
can be invoked only when the authority is satisfied from
the material placed before him that it is not reasonably
practicable to hold a departmental enquiry. This is clear
from the following observation at page 270 of Tulsiram
case: (SCC p. 504, para 130)
“A disciplinary authority is not expected to
dispense with a disciplinary inquiry lightly or
arbitrarily or out of ulterior motives or merely in
order to avoid the holding of an inquiry or
because the department’s case against the
government servant is weak and must fail.”
9. In the present matter, the Division Bench vide the impugned
judgment has as a fact found that the High Court had failed to
record satisfaction in writing for dispensing with an inquiry before
arriving at its decision to dismiss the judicial officers. For this
reason, the order of dismissal dated 12th February 2014 passed by
the Governor of the State of Bihar under clause (b) of the second
proviso to Article 311(2) was quashed and set aside.
Consequently, the judicial officers were to be reinstated in service.
1
(1991) 1 SCC 362
2
(1985) 3 SCC 398
Civil Appeal No. 3105 of 2017 & Ors. Page 8 of 23
This is what has been observed in the quoted portion of the final
directions by the Division Bench, which refers to the fact that “two”
(sic-one) judicial officers had attained the age of superannuation
during the pendency of the writ petitions and, therefore, they
would be deemed to be continuing in service for the limited
purpose of enabling the disciplinary proceedings to continue. The
other officer(s) would be deemed to be under suspension. The
High Court was required to take a decision within two months and
if no decision was taken, the proceedings would lapse and the
judicial officers would be entitled to all consequential benefits as if
the proceedings had been set aside in entirety. It was directed that
the judicial officer(s) who continued to be in service, would be paid
subsistence allowance, and the retired would be paid provisional
pension to the extent of 25% forthwith.
10. The directions and observations of the judgment quoted above do
not confer a new and unconventional right or power on the High
Court, instead clarifies what is an obvious and perspicuous
consequence of quashing the order of dismissal in the present
case. The direction requires the High Court to proceed in
accordance with law and rightly did not put any fetters on the
course of action the High Court as a disciplinary authority would
like to follow. Therefore, it is observed, more out of abundant
Civil Appeal No. 3105 of 2017 & Ors. Page 9 of 23
caution rather than as a typical direction, that the High Court was
entitled, if it deemed it appropriate and proper, to invoke the power
under clause (b) of the second proviso to Article 311(2) of the
Constitution at an appropriate stage, after recording reasons and
following the prescribed procedure.
11. Striking down and setting aside the earlier order dated 12th
February, 2014 under clause (b) of the second proviso to Article
311(2) for failure to record reasons for dispensing with the
departmental inquiry annuls the earlier order, which ceases to
exist and stands obliterated, but does not adjudicate on the merits
of the allegations so as to attract the bar of res judicata.
Conscious of the seriousness of the allegations and the reason for
allowing the writ petition, the Division Bench was justified in not
barring the High Court from fresh application of mind and from
invoking clause (b) of the second proviso to Article 311(2) if
required and justified in accordance with law. The expression ‘at
appropriate stage’ used by the Division Bench is not a direction for
initiation of a regular departmental inquiry nor does it prohibit
recourse to clause (b) to the second proviso of Article 311(2) of
the Constitution in accordance with law. We do not see such
fetters and restrictions placed on the High Court by the Division
Bench.
Civil Appeal No. 3105 of 2017 & Ors. Page 10 of 23
12. The judicial officers had referred to Mohinder Singh Gill and
Another v. The Chief Election Commissioner, New Delhi and
Others3
 and East Coast Railway and Another v. Mahadev
Appa Rao and Others4
 to assert that this Court had rejected the
contention that reasons under clause (b) of the second proviso to
Article 311(2) could be subsequently recorded to support the
order. The submission does not bolster the appellants’ case
because in these decisions this Court had refused to accept
affidavits providing reasons for dispensing with the inquiry,
observing that these were post the dismissal order. The reasons
were submitted in the Court proceedings, and were not recorded
at the time of exercise of the power under clause (b) to the second
proviso to Article 311(2) of the Constitution. As per the dicta in
Tulsiram Patel (supra) and Jaswant Singh (supra), the law in
terms of clause (b) of the second proviso to Article 311(2)
mandates that the reasons for dispensing with the inquiry must be
recorded in writing before the order of dismissal.
13. Similarly reference to Chief Security Officer and Others v.
Singasan Rabi Das,
5 State of Orissa and Others v.
3
(1978) 1 SCC 405
4
(2010) 7 SCC 678
5
(1991) 1 SCC 729
Civil Appeal No. 3105 of 2017 & Ors. Page 11 of 23
Dinabandhu Beheta and Others,
6 Sudesh Kumar v. State of
Haryana and Others,
7 Tarsem Singh v. State of Punjab and
Others,
8 Reena Rani v. State of Haryana and Others,
9
 and
Risal Singh v. State of Haryana and Others,10 do not support
the contention raised by the judicial officers, but would support the
contrary view. In these judgments, the orders under clause (b) to
the second proviso of Article 311(2) of the Constitution were
struck down for want of recorded reasons for dispensing with the
departmental inquiry. Notwithstanding the quashing, this Court in
several cases had expressly permitted the authorities to proceed
further and take action in accordance with law. For example, in
Reena Rani (supra), it was held,
“12. In the result, the appeal is allowed. The impugned
judgment as also the order passed by the learned Single
Judge are set aside and the writ petition filed by the
appellant is allowed with the direction that she shall be
reinstated in service and given all consequential benefits.
However, it is made clear that this order shall not preclude
the competent authority from taking action against the
appellant in accordance with law. At the same time, we
deem it necessary to observe that liberty given by this
Court shall not be construed as a mandate for initiation of
disciplinary proceeding against the appellant and the
competent authority shall take appropriate decision after
objectively considering the entire record.”
6
(1997) 10 SCC 383
7
(2005) 11 SCC 525
8
(2006) 13 SCC 581
9
(2012) 10 SCC 215
10 (2014) 13 SCC 244
Civil Appeal No. 3105 of 2017 & Ors. Page 12 of 23
Similarly, in Risal Singh (supra), it was observed as under:
“10. Consequently, we allow the appeal and set aside the
order passed by the High Court and that of the disciplinary
authority. The appellant shall be deemed to be in service
till the date of superannuation. As he has attained the age
of superannuation in the meantime, he shall be entitled to
all consequential benefits. The arrears shall be computed
and paid to the appellant within a period of three months
hence. Needless to say, the respondents are not
precluded from initiating any disciplinary proceedings, if
advised in law. As the lis has been pending before the
Court, the period that has been spent in Court shall be
excluded for the purpose of limitation for initiating the
disciplinary proceedings as per rules. However, we may
hasten to clarify that our observations herein should not be
construed as a mandate to the authorities to initiate the
proceeding against the appellant. We may further proceed
to add that the State Government shall conduct itself as a
model employer and act with the objectivity which is
expected from it. There shall be no order as to costs.”
14. The second contention raised by the judicial officers is with
reference to the earlier observation of the Division Bench while
dealing with the third issue or point (c) to the following effect:
“In the instant case, the High Court did undertake a
preliminary enquiry and got possession of certain
materials; be it in the form of the paper clippings, report of
the District Judge, Purnea or letter from the Home Ministry,
Government of India. When it was possible for the High
Court to undertake such an enquiry, it would have been
equally possible to frame charges, and then attempt to
proceed with the departmental enquiry. It is only when
conducting of departmental enquiry was turning out to be a
difficult task, either at the inception or half way-through,
that a decision could have been taken to dispense with the
enquiry; by recording specific reasons. The judgments of
the Hon’ble Supreme Court in Tarsem Singh (supra) and
Tulsi Ram Patel (supra) throw light upon this. On applying
the principles laid therein, it becomes clear that there is
patent violation in the impugned proceedings. Therefore,
we hold this point also in favour of the petitioners.”
Civil Appeal No. 3105 of 2017 & Ors. Page 13 of 23
Learned counsel, referring to the portion, submits that the Division
Bench has held that the departmental inquiry was possible and
could not have been dispensed with.
15. The observations in our opinion are being misread as the aforequoted portion refers to the legal position that normally
departmental inquiry should be held. It also refers to the scenario
where a departmental inquiry cannot be conducted that is, “when
conducting of departmental enquiry was turning out to be a difficult
task”, in which case a “decision could have been taken to
dispense with the enquiry; by recording specific reasons”. It is
observed that the principles laid down in Tulsiram Patel (supra)
and Tarsem Singh (supra) have to be kept in mind. Appropriate in
this regard, would be a reference to the following observations in
Tulsiram Patel (supra), which read:
“130. The condition precedent for the application of
clause (b) is the satisfaction of the disciplinary authority
that “it is not reasonably practicable to hold” the inquiry
contemplated by clause (2) of Article 311. What is
pertinent to note is that the words used are “not
reasonably practicable” and not “impracticable”.
According to the Oxford English Dictionary “practicable”
means “Capable of being put into practice, carried out in
action, effected, accomplished, or done; feasible”.
Webster’s Third New International Dictionary defines the
word “practicable” inter alia as meaning “possible to
practice or perform: capable of being put into practice,
done or accomplished: feasible”. Further, the words
Civil Appeal No. 3105 of 2017 & Ors. Page 14 of 23
used are not “not practicable” but “not reasonably
practicable”. Webster’s Third New International
Dictionary defines the word “reasonably” as “in a
reasonable manner: to a fairly sufficient extent”. Thus,
whether it was practicable to hold the inquiry or not must
be judged in the context of whether it was reasonably
practicable to do so. It is not a total or absolute
impracticability which is required by clause (b). What is
requisite is that the holding of the inquiry is not
practicable in the opinion of a reasonable man taking a
reasonable view of the prevailing situation.”
Thus, the authorities to invoke the power under clause (b) to
the second proviso of Article 311(2) to dispense with a
departmental inquiry must record a finding that such an inquiry
cannot be conducted and record specific reasons for the same. In
this case, the Division Bench had recorded the contention of the
respondent- High Court as the disciplinary authority that it would
be impossible to assimilate, collect and produce direct evidence
and material as the acts and misdeeds were in another country.
The Division Bench having found that reasons had not been
recorded for dispensing with the inquiry, has neither accepted nor
rejected this contention of the High Court. It will not be appropriate
and correct to interpret the decision of the Division Bench by
reading one or more sentences of a paragraph in isolation. The
entire judgment has to be read to understand the ratio and finding
and the observations must be read in the context in which they
have been made.
Civil Appeal No. 3105 of 2017 & Ors. Page 15 of 23
16. Learned counsel appearing for Komal Ram and Jitendra Nath
Singh had raised another contention relating to the power of the
High Court to dispense with the inquiry under clause (b) of the
second proviso to Article 311 of the Constitution. The contention is
that this power exclusively vests with the Governor alone who has
to satisfy himself and record in writing the reasons why it is not
reasonably practical to hold an inquiry. Reliance was placed on
the following observations in the Constitutional Bench judgment of
this Court in State of West Bengal v. Nripendra Nath Bagchi,
11:
“...within the exercise of the control vested in the High
Court, the High Court can hold enquiries, impose
punishments other than dismissal or removal, subject
however to the conditions of service, to a right of
appeal if granted by the conditions of service, and to
the giving of an opportunity of showing cause as
required by clause (2) of Article 311 unless such
opportunity is dispensed with by the Governor acting
under the provisos (b) and (c) to that clause.”
17. The contention misreads the ratio in Nripendra Nath Bagchi
(supra), which rather holds to the contrary. Interpreting Articles
233 and 235 of the Constitution, and on the aspect of ‘control’ of
the High Court in matters relating to the subordinate judiciary in
Nripendra Nath Bagchi (supra), it was held:
“13. […] the history which lies behind the enactment of
these Articles indicate that “control” was vested in the
11 AIR 1966 SC 447
Civil Appeal No. 3105 of 2017 & Ors. Page 16 of 23
High Court to effectuate a purpose, namely, the
securing of the independence of the subordinate
judiciary and unless it included disciplinary control as
well the very object would be frustrated. This aid to
construction is admissible because to find out the
meaning of a law, recourse may legitimately be had to
the prior state of the law, the evil sought to be removed
and the process by which the law was evolved. The
word “control”, as we have seen, was used for the first
time in the Constitution and it is accompanied by the
word “vest” which is a strong word. It shows that the
High Court is made the sole custodian of the control
over the judiciary. Control, therefore, is not merely the
power to arrange the day to day working of the court
but contemplates disciplinary jurisdiction over the
presiding Judge. Article 227 gives to the High Court
superintendence over these courts and enables the
High Court to call for returns etc. The word “control” in
Article 235 must have a different content. It includes
something in addition to mere superintendence. It is
control over the conduct and discipline of the judges.
This conclusion is further strengthened by two other
indications pointing clearly in the same direction. The
first is that the order of the High Court is made subject
to an appeal if so provided in the law regulating the
conditions of service and this necessarily indicates an
order passed in disciplinary jurisdiction. Secondly, the
words are that the High Court shall “deal” with the
judge in accordance with his rules of service and the
word “deal” also points to disciplinary and not mere
administrative jurisdiction.
14. Articles 233 and 235 make a mention of two distinct
powers. The first is power of appointments of persons,
their postings and promotion and the other is power of
control. In the case of the District Judges,
appointments of persons to be and posting and
promotion are to be made by the Governor but the
control over the District Judge is of the High Court. We
are not impressed by the argument that the term used
is “District Court” because the rest of the Article clearly
indicates that the word “court” is used compendiously
to denote not only the court proper but also the
presiding Judge. The latter part of Article 235 talks of
the man who holds the office. In the case of the judicial
Civil Appeal No. 3105 of 2017 & Ors. Page 17 of 23
service subordinate to the District judge the
appointment has to be made by the Governor in
accordance with the rules to be framed after
consultation with the State Public Service Commission
and the High Court but the power of posting, promotion
and grant of leave and the control of the courts are
vested in the High Court. What is vested includes
disciplinary jurisdiction. Control is useless if it is not
accompanied by disciplinary powers. It is not to be
expected that the High Court would run to the
Government or the Governor in every case of
indiscipline however small and which may not even
require the punishment of dismissal or removal. These
Articles go to show that by vesting “control” in the High
Court the independence of the subordinate judiciary
was in view. This was partly achieved in the
Government of India Act, 1935 but it was given effect
to fully by the drafters of the present Constitution. This
construction is also in accord with the Directive
Principles in Article 50 of the Constitution which reads:
“50. The State shall take steps to separate
the judiciary from the executive in the public
services of the State”.
xx xx xx
17. […] That the Governor appoints District Judges and
the Governor alone can dismiss or remove them goes
without saying. That does not impinge upon the control
of the High Court. It only means that the High Court
cannot appoint or dismiss or remove District Judges. In
the same way the High Court cannot use the special
jurisdiction conferred by the two provisos. The High
Court cannot decide that it is not reasonably
practicable to give a District Judge an opportunity of
showing cause or that in the interest of the security of
the State it is not expedient to give such an
opportunity. This the Governor alone can decide. That
certain powers are to be exercised by the Governor
and not by the High Court does not necessarily take
away other powers from the High Courts. The provisos
can be given their full effect without giving rise to other
implications. It is obvious that if a case arose for the
exercise of the special powers under the two provisos,
Civil Appeal No. 3105 of 2017 & Ors. Page 18 of 23
the High Court must leave the matter to the Governor.
In this connection we may incidentally add that we
have no doubt that in exercising these special powers
in relation to inquiries against District Judges, the
Governor will always have regard to the opinion of the
High Court in the matter. This will be so whoever be
the inquiring authority in the State. But this does not
lead to the further conclusion that the High Court must
not hold the enquiry any more than that the Governor
should personally hold the enquiry.”
18. The expression/words “within the exercise of the control vested in
the High Court, the High Court can hold enquiries, impose
punishments other than dismissal or removal, subject however to
the conditions of service, to a right of appeal if granted by the
conditions of service, and to the giving of an opportunity of
showing cause as required by clause (2) of Article 311 unless
such opportunity is dispensed with by the Governor acting under
the provisos (b) and (c) to that clause” is not to deny the High
Court the authority to decide whether conditions for invoking
clause (b) of the second proviso to Article 311(2) are satisfied, but
recognises that the resolution and recommendation of dismissal,
removal or reduction in rank or for dispensing with the inquiry in
terms of clause (b) [also clause (c)] of the second proviso to
Article 311(2) would require an order of the Governor. The
observations do not hold that the Governor, and not the High
Court, is vested with the jurisdiction and is the competent authority
Civil Appeal No. 3105 of 2017 & Ors. Page 19 of 23
to decide whether the inquiry should be dispensed with upon
recording of satisfaction in terms of clause (b) of the second
proviso to Article 311(2) of the Constitution. The decision refers to
Article 235 of the Constitution and states that the control vests
with the High Court, albeit order of appointment, dismissal or
removal is passed and made in the name of the Governor who
passes the formal order be it a case of appointment, dismissal or
removal. This is clear from the last portion of paragraph 17 in
Nirpendra Nath Bagchi (supra) which records “that the Governor
will always have regard to the opinion of the High Court in the
matter. This will be the inquiring authority in the State. But this
does not lead to the further conclusion that the High Court must
not hold the enquiry any more than that the Governor should
personally hold the enquiry.”
This legal position with reference to Articles 233 to 236 and
‘control’ of the High Court is beyond doubt as was explained in
Ajit Kumar v. State of Jharkhand12 in the following words:
“15. The next contention raised by the appellant was
that the aforesaid power under Article 311(2)(b) of the
Constitution could not have been invoked by the High
Court. The aforesaid submission also cannot be
accepted in view of the fact that a Subordinate Judge is
also a Judge within the meaning of the provision of
Article 233 of the Constitution of India read with the
provisions of Articles 235 and 236 of the Constitution of
India.
12 (2011) 11 SCC 458
Civil Appeal No. 3105 of 2017 & Ors. Page 20 of 23
16. Article 233 clearly lays down that appointments and
promotions of District Judges in any State are to be
made by the Governor of the State in consultation with
the High Court exercising jurisdiction in relation to such
State. The aforesaid provision, like Articles 234 to 236,
has been incorporated in the Constitution of India inter
alia to secure the independence of the judiciary from
the executive and the same deals with the scope of
separation of power of the three wings of the State.
17. It cannot be disputed that the power under the
aforesaid articles [Articles 233-236] is to be exercised
by the Governor in consultation with the High Court.
Under the scheme of the Indian Constitution the High
Court is vested with the power to take decision for
appointment of the subordinate judiciary under Articles
234 to 236 of the Constitution. The High Court is also
vested with the power to see that the high traditions
and standards of the judiciary are maintained by the
selection of proper persons to run the District Judiciary.
If a person is found not worthy to be a member of the
judicial service or it is found that he has committed a
misconduct he could be removed from the service by
following the procedure laid down. Power could also be
exercised for such dismissal or removal by following
the preconditions as laid down under Article 311(2)(b)
of the Constitution of India. Even for imposing a
punishment of dismissal or removal or reduction in
rank, the High Court can hold disciplinary proceedings
and recommend such punishments. The Governor
alone is competent to impose such punishment upon
persons coming under Articles 233-235 read with
Article 311(2) of the Constitution of India. Similarly,
such a power could be exercised by the High Court to
dispense with an enquiry for a reason to be recorded in
writing and such dispensation of an enquiry for valid
reasons when recommended to the Governor, it is
within the competence of the Governor to issue such
orders in terms of the recommendation of the High
Court in exercise of power under Article 311(2)(b) of
the Constitution of India.” (emphasis supplied)
Civil Appeal No. 3105 of 2017 & Ors. Page 21 of 23
19. During the course of hearing before us, it was pointed out that the
Full Court had subsequently again recommended dismissal of the
judicial officers dispensing with the departmental inquiry in the
exercise of power under clause (b) of the second proviso to Article
311(2) of the Constitution vide recommendation dated 13th August
2015. However, the matter is pending with the State Government
and we were informed that no final order has been passed in view
of the stay order dated 11th September 2015 passed by this Court.
It was also initially urged and argued that the order of dismissal
under clause (b) of the second proviso to Article 311(2) of the
Constitution cannot be passed against the officer who has retired.
We were informed that the other two officers had also retired
during the pendency of the present appeals. Therefore, at best the
pensionary and retirement benefits can be forfeited and denied,
but an order of dismissal from service by invoking powers under
clause(b) of the second proviso to Article 311(2) cannot be passed
against the appellants - judicial officers. Subsequently, the
counsel for the appellants - judicial officers did not press this
contention as the matter is still pending before the State
authorities, and the final order is yet to be passed. A challenge
cannot be made in anticipation. Further, this challenge was also
not the subject matter of the writ petitions in which the impugned
Civil Appeal No. 3105 of 2017 & Ors. Page 22 of 23
order was passed and would constitute an entirely new cause of
action. Counsels for the appellants - judicial officers have,
accordingly, reserved their right to challenge the order if, and as
and when it is passed. In view of the aforesaid position, we would
not go into the merits of the said contention and leave the issue
open. It is equally open to the respondents, that is, the State of
Bihar and the High Court to examine this contention.
20. Recording the aforesaid, the appeals are dismissed and the stay
order is vacated, albeit we clarify that the respondents, in terms of
the judgment passed by the Division Bench, would be required to
proceed in accordance with law. We also clarify that we have
expressed no opinion on the merits of the allegations made
against the three judicial officers. There would be no order as to
costs.
................................J.
(INDU MALHOTRA)
.................................J.
(SANJIV KHANNA)
NEW DELHI;
NOVEMBER 08, 2019.
Civil Appeal No. 3105 of 2017 & Ors. Page 23 of 23