LAW FOR ALL

Tuesday, April 20, 2021

seeking to protect two species of birds namely the Great Indian Bustard (‘GIB’ for short) and the Lesser 1 Florican, which is on the verge of extinction.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

I.A. NO.85618 OF 2020

WRIT PETITION (CIVIL) NO.838 OF 2019

M.K. Ranjitsinh & Ors. .…. Petitioner(s)

Versus

Union of India & Ors. ….Respondent(s)

O R D E R

1. The writ petition is filed in the nature of public

interest seeking to protect two species of birds namely the

Great Indian Bustard (‘GIB’ for short) and the Lesser

Florican, which is on the verge of extinction. The existence of

overhead power lines is stated to have become a hazard due

to which the said species of birds on collision are getting

killed. In the pending writ petition, the application in I.A.

No.85618/2020 is filed seeking interim directions to direct

the State of Rajasthan (respondents No.5 and 6) and State of

Gujarat (respondents No.9 to 11) to ensure predator proof

fencing, controlled grazing in the enclosure development and

to direct the said respondents not to permit installation of

overhead power lines and also not permit further

construction of windmills and installation of solar

infrastructure in priority and potential habitat as identified

by the Wildlife Institute of India. The petitioner is also

seeking a direction to the respondents to install divertors for

the powerlines which has been listed in the application.

2. The very subject matter indicates that though such

directions are sought against the respondents, the litigation

is not adversarial in nature as it is community interest. In

fact, the petitioners being environmentalists, are seeking to

protect the rare birds which are dwindling in number. It is

contended that GIB is one of the heaviest flying birds in the

world, about a meter in height and wing span of around

seven feet. It has disappeared from 90 per cent of habitat

except parts of Rajasthan and Gujarat which is to be

protected. According to the petitioners, overhead power lines

are the biggest threat to the survival of the GIBs. The

Wildlife Institute of India (WII) in its Report “Power Line

Mitigation, 2018” has stated that every year 1 lakh birds die

due to collision with power lines. The Report concluded that

unless power line mortality is mitigated urgently, extinction

of GIBs is certain. Surveys conducted by Wildlife Institute of

India (WII) in Thar covering 80 km of power lines repeated 7

times over a year found 289 carcasses of around 30 species,

including the Great Indian Bustard (GIB). The study

estimated 3 bird mortalities/km/month for lowtension

lines, 6 bird mortalities/km/month for hightension lines,

and about 1 lakh birds/per year within a 4200 sq.km area

in/around Desert National Park, Rajasthan. In terms of

GIB, 6 mortalities have been recorded in Thar during 2017

20, all due to hightension transmission lines – some of

them connected to wind turbine. Therefore, petitioner seeks

undergrounding all future overhead power lines; selected

power lines in priority GIB habitat and installation of

divertors in potential habitat.

3. In fact, it is admitted by the Ministry of Power, Union

of India in their affidavit dated 15.03.2021 as follows:

“The Great Indian Bustard (“GIB”) lacks frontal

vision. Due to this, they cannot detect

powerlines ahead of them, from far. As they are

heavy birds, they are unable to manoeuvre

across power lines within close distances. Thus,

they are vulnerable to collision with power lines.

In case of low voltage lines, electrocution is often

the cause of death due to smaller phase to phase

separation distance. High voltage lines do not

cause death due to electrocution but cause death

due to collision.”

4. But, this Court while considering IA Nos.1433 and

1477 of 2005 in the case of T.N. Godavarman

Thirumulpad Vs. Union of India & Ors. (2012) 3 SCC 277

has observed as hereunder:

“17. Environmental justice could be achieved

only if we drift away from the principle of

anthropocentric to ecocentric. Many of our

principles like sustainable development,

polluterpays principle, intergenerational equity

have their roots in anthropocentric principles.

Anthropocentrism is always human interest

focussed and that nonhuman has only

instrumental value to humans. In other words,

humans take precedence and human

responsibilities to nonhuman based benefits to

humans. Ecocentrism is naturecentred where

humans are part of nature and nonhumans

have intrinsic value. In other words, human

interest does not take automatic precedence

and humans have obligations to nonhumans

independently of human interest. Ecocentrism

is therefore lifecentred, naturecentred where

nature includes both humans and nonhumans.

The National Wildlife Action Plan 20022012

and the Centrally Sponsored Integrated

Development of Wildlife Habitats Scheme, 2009

are centred on the principle of ecocentrism.”

In that context while taking note of the contention of the

State relating to lack of funds, reference was made to the

Centrally Sponsored Integrated Development of Wildlife

Habitats Scheme, 2009 which provides for financial

sharing between Centre and State. Though taken note in

the context of conservation of wild buffalo the pattern of

funding was taken note in para23 which provides for

100% central assistance in respect of GIB, for both

recurring and nonrecurring items of expenditure.

5. Further this Court in the case of Centre for

Environmental Law, World Wide Fund – India Vs.

Union of India & Ors., (2013) 8 SCC 234 while

considering the protection and conservation of endangered

species has observed as hereunder:

“45. We may point out that there has been wideranging discussions and deliberations on the

international platforms and conferences for rebuilding of certain principles laid down in the

earlier conventions on the Principles of

Sustainable Development. The United Nations

Commission on Environment and Development

defined the “sustainable development” as

follows:

“Sustainable development is the development

that meets the needs of the present without

compromising the ability of future generations

to meet their own needs.” (World Commission

on Economic Development [WCED], 1987 : 43)

46. Sustainable development, it has been

argued by various eminent environmentalists,

clearly postulates an anthropocentric bias, least

concerned with the rights of other species which

live on this earth. Anthropocentrism is always

human interest focussed thinking that nonhuman has only instrumental value to humans,

in other words, humans take precedence and

human responsibilities to nonhuman are based

on benefits to humans. Ecocentrism is naturecentred, where humans are part of nature and

nonhumans have intrinsic value. In other

words, human interest does not take automatic

precedence and humans have obligations to

nonhumans independently of human interest.

Ecocentrism is, therefore, lifecentred, naturecentred where nature includes both humans

and nonhumans.”

“48. Article 21 of the Constitution of India

protects not only the human rights but also

casts an obligation on human beings to protect

and preserve a species becoming extinct,

conservation and protection of environment is

an inseparable part of right to life. In M.C.

Mehta v. Kamal Nath [(1997) 1 SCC 388] , this

Court enunciated the doctrine of “public trust”,

the thrust of that theory is that certain common

properties such as rivers, seashores, forests and

the air are held by the Government in

trusteeship for the free and unimpeded use of

the general public. The resources like air, sea,

waters and the forests have such a great

importance to the people as a whole, that it

would be totally unjustified to make them a

subject of private ownership. The State, as a

custodian of the natural resources, has a duty

to maintain them not merely for the benefit of

the public, but for the best interest of flora and

fauna, wildlife and so on. The doctrine of “public

trust” has to be addressed in that perspective.

49. We, as human beings, have a duty to

prevent the species from going extinct and have

to advocate for an effective species protection

regimes. NWAP 20022016 and the Centrallysponsored scheme, 2009 indicate that there are

many animal species which are close enough to

extinction and some of the other species have

already disappeared from this earth. No species

can survive on the brink of extinction

indefinitely and that the continued existence of

any species depends upon various factors like

humananimal conflict, epidemics, forest fire

and other natural calamities, etc.”

The State as well as the Central Government therefore,

have a duty cast to preserve the endangered species and

as such the expenses incurred will have to be provided by

them either under the schemes available or by

earmarking the same in such manner. Needless to

mention that in the instant case the preservation is by

undergrounding the powerlines and in that context if cost

is incurred, it would also be permissible to pass on a

portion of such expenses to the ultimate consumer

subject to approval of the Competent Regulatory

Authority.

6. The respondents though are sensitive to the issue,

have contended that the highvoltage lines do not cause

GIB deaths due to electrocution but cause death due to

collision. It is contended that the underground highvoltage line is not technically feasible due to several

factors such as (i) high cost (ii) high downtime to repair

any failed cable (iii) nonavailability of cables at 765 Kv

level and (iv) increase in the number of joints with length

of run. The petitioners/applicants in order to controvert

the same and contend that the undergrounding of high8

voltage line is not a novel move but has been undertaken

in other cases, have referred to the tender notification

issued by Power Transmission Corporation of

Uttarakhand Limited for 220 KV transmission line and

the one issued by Delhi Transport Limited for 220 KV

underground cable.

7. In addition, the petitioners have also referred to the

invitation of public comments for laying underground

cable transmission line of 220 KV by the Government of

India, Ministry of Road Transport and Highways. The

report published by the Power Grid Corporation is

referred to indicate that the undergrounding of 220 KV

power line is possible and is being done in India. It is

specifically contended that the 10 km long power lines

were made underground by GETCO for the safety of

Greater Flamingos in the Khadir Region of Kutch.

Similar such instances of underground power lines being

laid is also referred by Mr. Shyam Divan, learned senior

counsel for the petitioner. Ms. Aishwarya Bhati, learned

ASG and Dr. Manish Singhvi, learned senior counsel

appearing on behalf of the respondents however sought

to indicate that the instances referred, wherein the tender

notifications were issued for underground power lines

cannot be made comparable in all cases inasmuch as the

same would be possible depending on the area, terrain

and the distance for which such cable line is to be laid

which cannot be of universal application.

8. In that background, keeping in view, the sustainable

development concept and on striking a balance the

protection of the rare species of birds is essentially to be

made, the effort being to save every bird while at the

same time allowing transmission of power in an

appropriate manner. Even as per the study/survey

conducted by the Wildlife Institute of India, it would not

be feasible to lay underground power cables in certain

areas and the conversion of the already existing cables

also cannot be made in certain locations. In such of the

locations, it is recommended that ‘bird divertors’ be

installed on the existing power lines and the

undergrounding of the new power line wherever

technically feasible in the vicinity of the habitats of the

rare species of birds be undertaken.

9. The report dated 11.07.2019 was submitted by the

Wildlife Institute before the National Green Tribunal to

that effect and para 4.2 of the report reads as hereunder:

“4.2. Mitigate all power transmission lines

passing through priority bustard habitats

identified by WII (Please refer Annexure 10)

by undergrounding cables (where

technically/technologically feasible) or

installing bird divertors to make them

prominent to birds. The priority areas where

this intervention is required has been

mapped by the Wildlife Institute of India and

a technicalcumfinancial proposal has been

submitted to RVPNL for necessary approvals

from Rajasthan Energy Department for

mitigation. This action must be expeditiously

implemented in the shortterm (13 years), as

powerline mortality is currently the biggest

threat to the species.”

10. In addition to the death of the birds due to collision

and electrocution, the conservation strategy also requires

protecting the eggs of the said species of birds and the

same being transferred to breeding centres for the

purpose of hatching. In that regard, for conservation, the

habitat restoration and for making it predator proof,

appropriate fencing is to be provided to the breeding

grounds. In that regard, pictorial representation of the

priority and potential area is indicated in Annexure A7

(page 74) of I.A. No.85618/2020 which is also depicted

here below.

11. In the above background, there cannot be

disagreement whatsoever that appropriate steps are

required to be taken to protect the said species of birds.

In that view, insofar as the existing overhead powerlines

are concerned the respondents shall take steps forthwith

to install divertors and in respect of existing overhead

powerlines all future cases of installing the transmission

lines a study shall be conducted with regard to the

feasibility for the lines to be laid underground. In all such

cases where it is feasible, steps shall be taken to lay the

transmission line underground. For the lines to be laid in

future if as per the technical report the overhead line

alone is feasible and the same is ratified by the

Committee, in such event the installation of the divertors

shall also be a condition attached in the contract to be

entered with generating companies. Insofar as, the cost

incurred in the said process, the concerned respondents

No. 5 to 8 and 9 to 11 shall work out and provide for the

same and the respondents No.1 to 4 aid in this regard. It

would be open to them to muster the resources in

accordance with law. In cases where the power

generators are required to bear the additional amount

adding to the cost of production, it would be open to

regulate the manner in which the cost would be mitigated

in accordance with contractual terms. Irrespective of the

cost factor the priority shall be to save the near extinct

birds.

12. In fact, a few suggestions were made in the course of

arguments, as to how financial resources can be mobilised.

One of the options that could be explored, is to invite the

attention of each electricity utility engaged in the generation

of power, to Section 135 of the Companies Act, 2013, which

imposes corporate social responsibility upon companies

having a specified net worth or turnover or net profit.

Section 166(2) of the Companies Act, 2013 ordains the

Director of a Company to act in good faith, not only in the

best interest of the Company, its employees, the

shareholders and the community, but also for the protection

of environment. The word “environment”, though not

defined in the Companies Act, has to be given the meaning

assigned to it under the Environment (Protection) Act, 1986.

Section 2(a) of the Environment (Protection) Act, 1986,

defines the word “environment” to include the “interrelationship which exists among and between water, air and

land, and human beings, other living creatures, plants, microorganisms and property”

Moreover, with the implementation of the Compensatory

Afforestation Fund Act, 2016 (CAF, 2016), substantial

funds are available with the National and State

Authorities. Sections 4, 5 and 6 of the Act, provide for

the utilisation of the fund for measures to mitigate

threats to wildlife. The State of Rajasthan has already set

up a Compensatory Afforestation Fund Management and

Planning Authority (CAMPA) on 12.11.2009. Rule 5(2)(i)

of these Rules permit the use of the State Fund for the

improvement of wildlife habitat. It appears, according to

the petitioners that a sum of Rs.47,436 crores, out of a

total of Rs.54,685 crores CAMPA Fund have been

transferred by the Union Environment Ministry to the

States for afforestation projects.

13. With regard to the conservation of the habitat to

secure the safety of the eggs laid by the birds, the area

earmarked and indicated as islands and shown in

AnnexureA7 and in light colour in sketch here below

shall be fenced and protected from invasion by predators

so that the eggs laid in these areas are protected. The

power supply line regarding which underground passage

is to be made should also avoid these areas.

14. In the light of the contentions urged on this aspect

of the matter, we are conscious that the laying of the

underground power line more particularly of highvoltage

though not impossible, would require technical

evaluation on casetocase basis and an omnibus

conclusion cannot be reached laying down a uniform

method and directions cannot be issued unmindful of the

fact situation. Though that be the position the

consensus shall be that all low voltage powerlines to be

laid in the priority and potential habitats of GIB shall in

all cases be laid underground in future. In respect of low

voltage overhead powerlines existing presently in the

priority and potential habitats of GIB, the same shall be

converted into underground powerlines. In respect of

highvoltage powerlines in the priority and potential

habitats of GIB, more particularly the powerlines referred

in the prayer column of I.A. No.85618/2020 and

indicated in the operative portion of this order shall be

converted into underground power line. The potential

and priority area in Kutch and Thar respectively are as

per the sketch shown below:

While considering the laying of underground power line

the said habitats shall be kept in perspective and steps be

taken for the safety of the GIB in the said habitat.

15. As already taken note above, the laying of highvoltage underground power line would require expertise to

assess the feasibility of the same. For this specific

purpose of assessing the feasibility after taking into

consideration all technical details, we deem it proper to

constitute a committee consisting of the following

members:

(i) Dr. Rahul Rawat,

Scientist,

Room No.021, Block14,

Ministry of New and Renewable Energy,

CGO Complex, Lodi Road,

New Delhi.

(ii) Dr. Sutirtha Dutta,

Scientist,

Wildlife Institute of India,

Dehradun.

(iii) Dr. Devesh Gadhavi,

Deputy Director,

The Corbett Foundation.

The above committee may also obtain technical

reports if need be, from experts in the field of electricity

supply to arrive at their decision. The Government of India

shall provide all assistance to the Committee.

16. The details of the powerlines from Kutch for

installation of bird divertors is as follows:

a) List of powerlines from Kutch for

installation of divertors

Capacity

1) Kukdau to Vingaber (8.86 Km) Unknown

2) Vingaber to Lala (4.84 Km) Unknown

3) Agriculture area near highway NH41 (0.53 KM)

Unknown

4) Agriculture area near highway NH41 (0.86 KM)

Unknown

5) Khirsara village to Khotara town

(3.42 Km)

Unknown

6) Prajau Substation to Prajau Village

on road side (2.81 Km)

Unknown

7) Part of Bhamedi to Naliya (4.44 Km) Unknown

8) Part of Fulay vandh to NaliyaJakhau Road (10.9 Km)

Unknown

9) Part of Kothara Naliya line (9.1 Km) Unknown

10) Part of KotharaNaliya Line (6.90

km)

Unknown

11) Part of Vanku to Fulay Vandh

(6.25 km)

Unknown

The details of the powerlines for installation of

divertors from Rajasthan are as follows:

b) List of powerlines for

installation of divertors from

Rajasthan

Capacity

1) Jaisalmer – Ramgarh 1 (40 Km) 132 kv

2) Jaisalmer – Ramgarh 2 (40 Km) 132 kv

3) Askandra (Pokran to Askandra )

(30 Km)

132 kv

4) Askandra (Pokran to Askandra )

(20 Km)

132 kv

5) Amarsagar – Ramgarh (40 Km) 220 kv

6) Amarsagar – Lilo (8 Km) 220 kv

7) Amarsagar – Phalodi (54 Km) 220 kv

8) Amarsagar – Phalodi (71 Km) 220 kv

9) Ramgarh Dechu (49 Km) 220 kv

10) Ramgarh Dechu (43 Km) 220 kv

11) Ramgarh Dechu (50 Km) 220 kv

12) Akai – Ramgarh (55 Km) 400 kv

13) Tejuva – Kuchadi (138 km) 33 kv

14) Kaladongar (70 Km) 33 kv

15) Mokla – Habur – Sanu (301 km) 33 kv

16) Tejuva – Kuchadi (25 km) 132 kv

17) Kaladongar (47 km) 132/220 kv

18) Mokla – Habur – Sanu (43 km) 132/220 kv

19) Chandan Via Bhagu ka Gaon to

Mohangarh (70 km)

33 kv

20) Amarsagar – Ramgarh (40 km) 220 kv

21) Amarsagar – Ludarva (4 km) 33 kv

The details of the powerlines to be converted to

underground subject to feasibility, if not, to immediately

install divertors;

Lines from Kutch

a) List of powerlines from Kutch for

undergrounding

Capacity

1) 220 KV GETCO line next to breeding

site 13 cables (3.19 Km)

220 KV

2) Bhachunda GIB habitat to Sandhav

River line (2.1 Km)

Unknown

3) Bhanada to Valram Society (6.1 Km) 66 KV

4) GETCO Substation to Dhanawada –

Nanawada (9.81 Km)

Unknown

5) GETCO Substation to KotharaMothala Road (9.69 Km)

Unknown

6) Jakhau to Prajau road substation

(10.9 Km)

Unknown

7) Jakhau to Sindhodi (8.39 Km) Unknown

8) Jakhau to Sindhodi (8.53 Km) Unknown

9) Jakhau to Sindhodi (8.57 Km) Unknown

10) JakhauVanku Road to Prajau Road

substation (3.43 Km)

Unknown

11) Kalatalav Khirsara Road (9.0 Km) Unknown

12) Khirsara Kothara (8.20 Km) Unknown

13) Khirsara to Kothara River

Wastelands (2.24 Km)

Unknown

14) Kunathiya GETCO to Bitta & around

Adani Solar (6.65)

220 kv

15) Kunathiya GETCO to Tera (7.32 Km) 66 KV

16) Kunathiya GETCO towards Rava

(3.34 km)

66 KV

17) Lala to Jakhau (11.6 Km) Unknown

18) Line near Khorsara (2.77 Km) Unknown

19) Line near Lala village (1.45 Km) Unknown

20) NaliyaKothara Road (6.58 Km) Unknown

21) NaliyaKothara Highway (15.0 Km) Unknown

22) NaliyaKothara Highway Line (15.7

km)

Unknown

23) NaliyaKothara Road to Prajau (9.15

Km)

Unknown

24) NaliyaKothara Road to VankuLala

Road (10.8 km)

66 KV

25) Prajau Road (5.57 Km) Unknown

26) Prajau to NaliyaJakhau Road Unknown

27) Prajau Road line passing through

Naliya Grasslands (4.43 km)

Unknown

28) Prajau Road substation to NaliyaKothara Road substation

Unknown

29) Prajau village to Prajau Road (5.82

Km)

Unknown

30) Part of Bhamedi to NaliyaJakhau

Road (8.19 km)

Unknown

31) Part of Fulay Vandh to Naliya Unknown

Jakhau Highway (8.27 Km)

32) Part of KotharaNaliya (8.82 Km) Unknown

33) Part of KotharaNaliya line (9.36 km) Unknown

34) Part of Vanku to Fulay Vandh line (1

km)

Unknown

35) Khirsara to Highway River

Wastelands (1.59 Km)

Unknown

36) Kunathiya GETCO to Bhanada

Village via Agri Farms (12.1 km)

66 KV

Lines from Rajasthan

b) List of powerlines from Rajasthan

for undergrounding

Capacity

1) KanoiSalkha (21 Km) 33 kv

2) SamDhanana (45 Km) 33 kv

3) TejuvaKuchr (17 Km) 33 kv

4) Khuchri horizontalparallel (21 Km) 33 kv

17. The respondents No.5, 6 and 9 to 11 while arranging

to lay the powerlines underground in respect of the

powerlines, the feasibility of which is not in doubt shall

proceed with the work right away. However, in cases where

the respondents find that there are issues relating to

feasibility, the matter shall be referred to the committee

with all relevant material and particulars. The committee

shall assess the matter and arrive at a conclusion as to

whether the underground powerline is feasible or not.

Based on the report to be rendered by the committee the

further action shall be taken by the respondent.

18. In all cases where the overhead powerlines exist as

on today in the priority and potential GIB area the

respondents shall take steps forthwith to install divertors

pending consideration of the conversion of the overhead

cables into underground powerlines. In all such cases

where it is found feasible to convert the overhead cables

into underground powerlines the same shall be undertaken

and completed within a period of one year and till such

time the divertors shall be hung from the existing

powerlines.

19. Ordered accordingly.

..…………....................CJI.

(S. A. Bobde)

…..…………....................J.

(A.S. Bopanna)

..…..………......................J.

(V. Ramasubramanian)

New Delhi,

April 19, 2021

non-compliance of Section 42 of NDPS Act =The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh. The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression “public place” as explained in Section 43 of the NDPS Act. On the strength of the decision of this Court in Jagraj Singh alias Hansa 3 , the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act. 13. It is an admitted position that there was total non-compliance of the requirements of Section 42 of the NDPS Act. 14. The decision of this Court in Karnail Singh 1 as followed in Jagraj Singh alias Hansa 3 , is absolutely clear. Total non-compliance of Section 42 is impermissible. The rigor of Section 42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh 1 but in no case, total non-compliance of Section 42 can be accepted. 12 15. In the circumstances, the courts below fell in error in rejecting the submissions advanced on behalf of the appellants. We, therefore, allow this appeal, set-aside the view taken by the High Court and acquit the appellants of the charge levelled against them. The appellants be released forthwith unless their custody is required in connection with any other offence.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.421 OF 2021

BOOTA SINGH & OTHERS …Appellants

Versus

STATE OF HARYANA …Respondent

J U D G M E N T

Uday Umesh Lalit, J.

1. This appeal challenges the judgment and final order dated 03.03.2020

passed by the High Court of Punjab & Haryana at Chandigarh dismissing

CR A-S-1759-SB-2004 preferred by the appellants and affirming their

conviction and sentence under Section 15 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (“the NDPS Act” for short).

2. The basic facts and the case of prosecution as recorded by the High

Court in its judgment are as under:

“2. The facts as put forth by the prosecution are to the effect

that on 28.01.2002, S.I. Nand Lal alongwith fellow police

officials were present at the canal bridge on Surtia-Rori road,

where he received a secret information to the effect that the

accused are selling poppy straw in a vehicle bearing registration

number GUD-4997 on a ‘kacha path’ at Rori-Jatana road and

they can be apprehended if raid is conducted. Accordingly, a

raid was conducted and the accused were found sitting in the

jeep bearing registration number GUD-4997 at the aforesaid

place. Major Singh, co-accused of the appellants, managed to

slip away, whereas, the appellants were apprehend at the spot.

They were found sitting upon two bags kept in the said jeep.

Notices under Section 50 of the Act were served upon them but

the appellants reposed faith upon the police officials. The

search of the bags led to the recovery of poppy straw. One bag

was containing 39 kg of poppy straw and the second bag was

containing 36 kg of poppy straw. Two samples weighing 100

grams each were separated from each bag. The sample parcels

and the bulk parcels were converted into separate parcels and

sealed with the seal bearing impression 'CS'. The jeep

alongwith weighing scale, two weights of 500 grams each were

also recovered and taken into possession vide recovery memos.

Ruqa was recorded and dispatched to the police station on the

basis thereof, the FIR was registered. Subsequently, Major

Singh, co-accused, was arrested. and on completion of

investigation, the challan was presented in the Court.

3. The charge was framed. The contents thereof were read

over and explained to the appellants, to which they pleaded not

guilty and claimed trial.

4. In support of its allegations, the prosecution has

examined four witnesses. Inspector Nand Lal (PW4) has

conducted the search of the accused in the presence of ASI

Jaswant Singh (PW3). The case property was retained in the

malkhana by Kuldeep Singh (PW2) and Constable Gurjit Singh

(PW 1) took the sample parcels to the FSL. The prosecution has

also 2 of 10 produced documentary evidence to substantiate the

version as put forth by it.”

3. By order dated 15.03.2002, on an application preferred by him, the

vehicle in question was released by the Trial Court in favour of accused

Gurdeep Singh.

4. During trial, PW4 Inspector Nand Lal, the Investigating Officer

deposed in his examination-in-chief as under:

“On 28.1.2002 I was posted as Sub Inspector/SHO in Police

Station Rori. On that day, I alongwith ASI Jaswant Singh and

other police officials were present at the canal bridge on Surtia

Rori-road in connection with patrolling. I received a secret

information that all the accused are selling poppy straw in a

vehicle bearing no.GUD-4997 upon a 'Kacha Rasta at RoriJatana road and can be apprehended red handed if a raid is

conducted. I tried to join two persons who were going to water

the fields in the investigations but they refused. Thereafter I

organised a raiding party and conducted a raid. All the accused

were found in the jeep bearing no GUD-4997, upon a kacha

rasta by the side of Rori-Jatana Road, Upon seeing the police

party, one of the accused, namely, Major fled the spot. I knew

the accused Major Singh since long. Remaining three accused

were apprehended at the spot. Accused Boota Singh, Gurdeep

Singh and Gurmahender Singh alias Mitta were found sitting

upon two bags lying in the said Jeep. Thereafter, I served

notices Ex.PC, Ex.PD and Ex.PE upon accused Gurdeep, Boota

and Gurmahender Singh respectively u/s 50 of NDPS asking

them as to whether they desired their search before a gazetted

officer or a Magistrate. Vide replies Exl.PC/1.1, Ex.PDA and

Ex.PE/I, accused Gurdeep Singh, Boota Singh and

Gurmahender Singh alias Mitta declined the offer and reposed

faith in the police. …”

In his cross-examination, the witness stated:-

“I did not record the secret information in writing. Wireless in

my jeep was out of order at that time. I did not obtain any

search warrants for conducting the search of the jeep of accused

during night hours. I did not record any ground for not

obtaining the requisite search warrants in my police file. The

writing work was done while sitting in the jeep.”

5. After considering the evidence on record, the Trial Court by its

judgment and order dated 12.08.2004, acquitted accused Major Singh but

convicted accused Boota Singh, Gurdeep Singh and Gurmohinder Singh,

under Section 15 of the NDPS Act and sentenced them to suffer rigorous

imprisonment for 10 years with imposition of fine in the sum of

Rs.1,00,000/-, in default whereof they were directed to undergo further

rigorous imprisonment for a period of two years.

On the question of applicability of Section 42 of the NDPS Act, the Trial

Court stated:-

“ … Learned counsel sought acquittal of accused due to noncompliance of Section 42 of N.D.P.S. Act. However, above

said argument could help the accused if recovery had been

effected from the house, building etc. of the accused.

Admittedly, recovery in question was effected from the accused

while they were sitting on road in a jeep at a public place.

Therefore, case of accused would be covered by Section 43 of

N.D.P.S. Act and not by Section 42 of N.D.P.S. Act. Under

these circumstances, argument of learned counsels for accused

is overruled.”

6. The convicted accused, being aggrieved, preferred the aforementioned

Criminal Appeal before the High Court, which was dismissed by the High

Court.

On the question whether the matter came within the scope of Section 42 of

the NDPS Act, the High Court observed:-

14. Furthermore, in the case in hand, the accused were

present in a jeep on a public path and in such circumstance, the

provisions of Section 43 and not of 42 of the Act come into

play. As per explanation to Section 43 of the Act, the public

place includes a

conveyance also. Section 43 of the Act contemplates a seizure

made in a public place or in transit. As such, Section 42 of the

Act is not applicable to the facts of the present case …”

7. In this appeal preferred by Boota Singh, Gurdeep Singh and

Gurmohinder Singh challenging the correctness of the decisions of the

courts below, we heard Mr. Praveen Kumar, learned counsel for the

appellants and Mr. Rakesh Mudgal, learned AAG for the State.

8. Mr. Praveen Kumar submitted inter alia:

a. The vehicle in question was a private vehicle belonging

to accused Gurdeep Singh and was not a public

conveyance, though parked on a public road.

b. As accepted by PW4 Inspector Nand Lal, the secret

information was not recorded in writing nor any grounds

were recorded for not obtaining the requisite search

warrants.

c. The instant case would not be come under Section 43 but

would be governed by the provisions of Section 42 of the

NDPS Act.

d. Section 42 having not been complied with at all, the

appellants were entitled to acquittal in terms of law laid

down in the Constitution Bench decision of this Court in

Karnail Singh v. State of Haryana1, followed in

subsequent decisions in Sukhdev Singh v. State of

Haryana2, and, State of Rajasthan v. Jagraj Singh alias

Hansa3.

1(2009) 8 SCC 539

2(2013) 2 SCC 212

3(2016) 11 SCC 687

9. Countering the submissions, Mr. Rakesh Mudgal, learned AAG

submitted that the courts below were right in observing that the instant case

would be governed by the provisions of Section 43 of the NDPS Act. It was

however accepted by the learned counsel that there was no material on

record to conclude that the vehicle in question was a public conveyance.

10. In Karnail Singh

, the Constitution Bench of this Court concluded:-

“35. In conclusion, what is to be noticed is that Abdul

Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not

require literal compliance with the requirements of Sections

42(1) and 42(2) nor did Sajan Abraham [(2001) 6 SCC 692 :

2001 SCC (Cri) 1217] hold that the requirements of Sections

42(1) and 42(2) need not be fulfilled at all. The effect of the two

decisions was as follows:

(a) The officer on receiving the information [of the

nature referred to in sub-section (1) of Section 42] from any

person had to record it in writing in the register concerned

and forthwith send a copy to his immediate official superior,

before proceeding to take action in terms of clauses (a) to

(d) of Section 42(1).

(b) But if the information was received when the officer

was not in the police station, but while he was on the move

either on patrol duty or otherwise, either by mobile phone,

or other means, and the information calls for immediate

action and any delay would have resulted in the goods or

evidence being removed or destroyed, it would not be

feasible or practical to take down in writing the information

given to him, in such a situation, he could take action as per

clauses (a) to (d) of Section 42(1) and thereafter, as soon as

it is practical, record the information in writing and

forthwith inform the same to the official superior.

of Sections 42(1) and 42(2) in regard to writing down the

information received and sending a copy thereof to the

superior officer, should normally precede the entry, search

and seizure by the officer. But in special circumstances

involving emergent situations, the recording of the

information in writing and sending a copy thereof to the

official superior may get postponed by a reasonable period,

that is, after the search, entry and seizure. The question is

one of urgency and expediency.

(d) While total non-compliance with requirements of subsections (1) and (2) of Section 42 is impermissible, delayed

compliance with satisfactory explanation about the delay

will be acceptable compliance with Section 42. To illustrate,

if any delay may result in the accused escaping or the goods

or evidence being destroyed or removed, not recording in

writing the information received, before initiating action, or

non-sending of a copy of such information to the official

superior forthwith, may not be treated as violation of Section

42. But if the information was received when the police

officer was in the police station with sufficient time to take

action, and if the police officer fails to record in writing the

information received, or fails to send a copy thereof, to the

official superior, then it will be a suspicious circumstance

being a clear violation of Section 42 of the Act. Similarly,

where the police officer does not record the information at

all, and does not inform the official superior at all, then also

it will be a clear violation of Section 42 of the Act. Whether

there is adequate or substantial compliance with Section 42

or not is a question of fact to be decided in each case. The

above position got strengthened with the amendment to

Section 42 by Act 9 of 2001.”

(Emphasis added)

11. In Jagraj Singh alias Hansa

, the facts were more or less identical.

In that case, the vehicle (as observed in para 5.3 of the decision) was not a

public transport vehicle. After considering the relevant provisions and some

of the decisions of this Court including the decision in Karnail Singh

, it

was observed:-

“14. What Section 42(2) requires is that where an officer takes

down an information in writing under sub-section (1) he shall

send a copy thereof to his immediate officer senior. The

communication Ext. P-15 which was sent to the Circle Officer,

Nohar was not as per the information recorded in Ext. P-14 and

Ext. P-21. Thus, no error was committed by the High Court in

coming to the conclusion that there was breach of Section

42(2).

. . . . . . . . . .

. . . . .

16. In this context, it is relevant to note that before the

Special Judge also the breach of Sections 42(1) and 42(2) was

contended on behalf of the defence. In para 12 of the judgment

the Special Judge noted the above arguments of defence.

However, the arguments based on non-compliance with Section

42(2) were brushed aside by observing that discrepancy in Ext.

P-14 and Ext. P-15 is totally due to clerical mistake and there

was compliance with Section 42(2). The Special Judge coming

to compliance with the proviso to Section 42(1) held that the

vehicle searched was being used to transport passengers as has

been clearly stated by its owner Vira Ram, hence, as per the

Explanation to Section 43 of the Act, the vehicle was a public

transport vehicle and there was no need of any warrant or

authority to search such a vehicle. The High Court has reversed

the above findings of the Special Judge. We thus, proceed to

examine as to whether Section 43 was attracted in the present

case which obviated the requirement of Section 42(1) proviso.

. . . . . . . . . .

. . . . .

29. After referring to the earlier judgments, the Constitution

Bench came to the conclusion that non-compliance with

requirement of Sections 42 and 50 is impermissible whereas

delayed compliance with satisfactory explanation will be

acceptable compliance with Section 42. The Constitution Bench

noted the effect of the aforesaid two decisions in para 5. The

present is not a case where insofar as compliance with Section

42(1) proviso even an argument based on substantial

compliance is raised there is total non-compliance with Section

42(1) proviso. As observed above, Section 43 being not

attracted, search was to be conducted after complying with the

provisions of Section 42. We thus, conclude that the High Court

has rightly held that non-compliance with Section 42(1) and

Section 42(2) were proved on the record and the High Court has

not committed any error in setting aside the conviction order.”

(Emphasis added)

12. The evidence in the present case clearly shows that the vehicle was

not a public conveyance but was a vehicle belonging to accused Gurdeep

Singh. The Registration Certificate of the vehicle, which has been placed on

record also does not indicate it to be a Public Transport Vehicle. The

explanation to Section 43 shows that a private vehicle would not come

within the expression “public place” as explained in Section 43 of the NDPS

Act. On the strength of the decision of this Court in Jagraj Singh alias

Hansa

, the relevant provision would not be Section 43 of the NDPS Act

but the case would come under Section 42 of the NDPS Act.

13. It is an admitted position that there was total non-compliance of the

requirements of Section 42 of the NDPS Act.

14. The decision of this Court in Karnail Singh

as followed in Jagraj

Singh alias Hansa

, is absolutely clear. Total non-compliance of Section 42

is impermissible. The rigor of Section 42 may get lessened in situations

dealt with in the conclusion drawn by this Court in Karnail Singh

but in no

case, total non-compliance of Section 42 can be accepted.

15. In the circumstances, the courts below fell in error in rejecting the

submissions advanced on behalf of the appellants. We, therefore, allow this

appeal, set-aside the view taken by the High Court and acquit the appellants

of the charge levelled against them. The appellants be released forthwith

unless their custody is required in connection with any other offence.

……………………..J.

[Uday Umesh Lalit]

……………………..J.

[K.M. Joseph]

New Delhi;

April 16, 2021.

CHEQUE BOUNCE CASES -The upshot of the above discussion leads us to the following conclusions: 1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial. 2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court. 24 | P a g e 3) For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses. 4) We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code. 5) The High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint under Section 138 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction. 6) Judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) have interpreted 25 | P a g e the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court’s notice that it lacks jurisdiction to try the complaint. 7) Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in Meters and Instruments (supra) do not lay down correct law. To conclusively deal with this aspect, amendment to the Act empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021. 8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

SUO MOTU WRIT PETITION (CRL.) NO.2 OF 2020

In Re: EXPEDITIOUS TRIAL OF CASES UNDER SECTION

138 OF N.I. ACT 1881.

O R D E R

1. Special Leave Petition (Criminal) No. 5464 of 2016

pertains to dishonour of two cheques on 27.01.2005 for an

amount of Rs.1,70,000/-. The dispute has remained pending

for the past 16 years. Concerned with the large number of

cases filed under Section 138 of the Negotiable Instruments

Act, 1881 (hereinafter 'the Act') pending at various levels, a

Division Bench of this Court consisting of two of us (the Chief

Justice of India and L. Nageswara Rao, J.) decided to examine

the reasons for the delay in disposal of these cases. The

Registry was directed to register a Suo Motu Writ Petition

(Criminal) captioned as “Expeditious Trial of Cases under

Section 138 of N.I. Act 1881”. Mr. Sidharth Luthra, learned

Senior Counsel was appointed as Amicus Curiae and Mr. K.

Parameshwar, learned Counsel was requested to assist him.

1 | P a g e

Notices were issued to the Union of India, Registrar Generals of

the High Courts, Director Generals of Police of the States and

Union Territories, Member Secretary of the National Legal

Services Authority, Reserve Bank of India and Indian Banks’

Association, Mumbai as the representative of banking

institutions.

2. The learned Amici Curiae submitted a preliminary report

on 11.10.2020 which was circulated to all the Respondents. On

19.01.2021, the learned Amici Curiae informed this Court that

only 14 out of 25 High Courts had submitted their responses to

the preliminary report. The Reserve Bank of India had also filed

its suggestions. Seven Directors General of Police had filed

their affidavits putting forward their views to the preliminary

report. The parties who had not filed their responses were

granted further time and the matter was listed on 24.02.2021

for final disposal. During the course of the hearing, it was felt

by a Bench of three Judges, consisting of the Chief Justice of

India, L. Nageswara Rao, J. and S. Ravindra Bhat, J. that the

matter had to be considered by a larger bench in view of the

important issues that arose for determination before this Court.

The reference of the matter to a larger bench was also

2 | P a g e

necessitated due to the submission made by the learned Amici

Curiae that certain judicial pronouncements of this Court

needed clarification. We have heard learned Amici Curiae,

Advocates for some States, the learned Solicitor General of

India, Mr. Vikramjit Banerjee, learned Additional Solicitor

General of India, Mr. Ramesh Babu, Advocate for the Reserve

Bank of India and Dr. Lalit Bhasin, Advocate for the Indian

Banks’ Association.

3. Chapter XVII inserted in the Act, containing Sections 138

to 142, came into force on 01.04.1989. Dishonour of cheques

for insufficiency of funds was made punishable with

imprisonment for a term of one year or with fine which may

extend to twice the amount of the cheque as per Section 138.

Section 139 dealt with the presumption in favour of the holder

that the cheque received was for the discharge, in whole or in

part, of any debt or other liability. The defence which may not

be allowed in a prosecution under Section 138 of the Act is

governed by Section 140. Section 141 pertains to offences by

companies. Section 142 lays down conditions under which

cognizance of offences may be taken under Section 138. Over

the years, courts were inundated with complaints filed under

3 | P a g e

Section 138 of the Act which could not be decided within a

reasonable period and remained pending for a number of

years.

4. This gargantuan pendency of complaints filed under

Section 138 of the Act has had an adverse effect in disposal of

other criminal cases. There was an imminent need for

remedying the situation which was addressed by the

Negotiable Instruments (Amendment and Miscellaneous

Provisions) Act, 2002. Sections 143 to 147 were inserted in the

Act, which came into force on 06.02.2003. Section 143 of the

Act empowers the court to try complaints filed under Section

138 of the Act summarily, notwithstanding anything contained

in the Code of Criminal Procedure, 1973 (hereinafter, ‘the

Code’). Sub-section (3) of Section 143 stipulates that an

endeavour be made to conclude the trial within six months

from the date of filing of the complaint. Section 144 deals with

the mode of service of summons. Section 145 postulates that

the evidence of the complainant given by him on affidavit may

be read as evidence in any inquiry, trial or other proceeding

under the Code. Bank’s slip or memo denoting that the cheque

has been dishonoured is presumed to be prima facie evidence

4 | P a g e

of the fact of dishonour of the cheque, according to Section

146. Section 147 makes offences punishable under the Act

compoundable. The punishment prescribed under the Act was

enhanced from one year to two years, along with other

amendments made to Sections 138 to 142 with which we are

not concerned in this case.

5. The situation has not improved as courts continue to

struggle with the humongous pendency of complaints under

Section 138 of the Act. The preliminary report submitted by

the learned Amici Curiae shows that as on 31.12.2019, the total

number of criminal cases pending was 2.31 crores, out of which

35.16 lakh pertained to Section 138 of the Act. The reasons

for the backlog of cases, according to the learned Amici Curiae,

is that while there is a steady increase in the institution of

complaints every year, the rate of disposal does not match the

rate of institution of complaints. Delay in disposal of the

complaints under Section 138 of the Act has been due to

reasons which we shall deal with in this order.

6. The learned Amici Curiae identified seven major issues

from the responses filed by the State Governments and Union

Territories which are as under:

5 | P a g e

a) Service of summons

b) Statutory amendment to Section 219 of the Code

c) Summary trials

d) Attachment of bank accounts

e) Applicability of Section 202 of the Code

f) Mediation

g) Inherent jurisdiction of the Magistrate

7. Service of summons on the accused in a complaint filed

under Section 138 of the Act has been one of the main reasons

for the delay in disposal of the complaints. After examining

the responses of the various State Governments and Union

Territories, several suggestions have been given by the learned

Amici Curiae for speeding up the service of summons. Some of

the suggestions given by him pertain to dishonour slips issued

by the bank under Section 146 of the Act, disclosing the current

mobile number, email address and postal address of the drawer

of the cheque, the details of the drawer being given on the

cheque leaf, creation of a Nodal Agency for electronic service of

summons and generation of a unique number from the

dishonour memo. The Union of India and the Reserve Bank of

India were directed to submit their responses to the

suggestions made by the learned Amici Curiae on these

6 | P a g e

aspects. After hearing the learned Solicitor General of India

and Mr. Ramesh Babu, learned counsel for the Reserve Bank of

India, on 10.03.2021, it was considered appropriate by this

Court to form a Committee with Hon’ble Mr. Justice R.C.

Chavan, former Judge of the Bombay High Court, as the

Chairman to consider various suggestions that are made for

arresting the explosion of the judicial docket. The

recommendations made by the learned Amici Curiae relating to

attachment of bank accounts to the extent of the cheque

amount, pre-summons mediation and all other issues which are

part of the preliminary note and the written submissions of the

learned Amici Curiae shall be considered by the

aforementioned Committee, in addition to other related issues

which may arise during such consideration. The Committee is

directed to deliberate on the need for creation of additional

courts to try complaints under Section 138 of the Act.

MECHANICAL CONVERSION OF SUMMARY TRIAL TO

SUMMONS TRIAL

8. The learned Amici Curiae submitted that Section 143 of

the Act provides that Sections 262 to 265 of the Code shall

apply for the trial of all offences under Chapter XVII of the Act.

7 | P a g e

The second proviso empowers the Magistrate to convert the

summary trial to summons trial, if he is of the opinion that a

sentence of imprisonment exceeding one year may have to be

passed or that it is undesirable to try the case summarily, after

recording reasons. The learned Amici Curiae has brought to

the notice of this Court that summary trials are routinely

converted to summons trials in a mechanical manner. The

suggestions made by him in his preliminary note that the High

Courts should issue practice directions to the Trial Courts for

recording cogent and sufficient reasons before converting a

summary trial to summons trial have been accepted by the

High Courts.

9. Section 143 of the Act has been introduced in the year

2002 as a step-in aid for quick disposal of complaints filed

under Section 138 of the Act. At this stage, it is necessary to

refer to Chapter XXI of the Code which deals with summary

trials. In a case tried summarily in which the accused does not

plead guilty, it is sufficient for the Magistrate to record the

substance of the evidence and deliver a judgment, containing a

brief statement of reasons for his findings. There is a

restriction that the procedure for summary trials under Section

8 | P a g e

262 is not to be applied for any sentence of imprisonment

exceeding three months. However, Sections 262 to 265 of the

Code were made applicable “as far as may be” for trial of an

offence under Chapter XVII of the Act, notwithstanding anything

contained in the Code. It is only in a case where the Magistrate

is of the opinion that it may be necessary to sentence the

accused for a term exceeding one year that the complaint shall

be tried as a summons trial. From the responses of various

High Courts, it is clear that the conversion by the Trial Courts of

complaints under Section 138 from summary trial to summons

trial is being done mechanically without reasons being

recorded. The result of such conversion of complaints under

Section 138 from summary trial to summons trial has been

contributing to the delay in disposal of the cases. Further, the

second proviso to Section 143 mandates that the Magistrate

has to record an order spelling out the reasons for such

conversion. The object of Section 143 of the Act is quick

disposal of the complaints under Section 138 by following the

procedure prescribed for summary trial under the Code, to the

extent possible. The discretion conferred on the Magistrate by

the second proviso to Section 143 is to be exercised with due

care and caution, after recording reasons for converting the

9 | P a g e

trial of the complaint from summary trial to summons trial.

Otherwise, the purpose for which Section 143 of the Act has

been introduced would be defeated. We accept the

suggestions made by the learned Amici Curiae in consultation

with the High Courts. The High Courts may issue practice

directions to the Magistrates to record reasons before

converting trial of complaints under Section 138 from summary

trial to summons trial in exercise of power under the second

proviso to Section 143 of the Act.

INQUIRY UNDER SECTION 202 OF THE CODE IN RELATION

TO SECTION 145 OF THE ACT

10. Section 202 of the Code confers jurisdiction on the

Magistrate to conduct an inquiry for the purpose of deciding

whether sufficient grounds justifying the issue of process are

made out. The amendment to Section 202 of the Code with

effect from 23.06.2006, vide Act 25 of 2005, made it

mandatory for the Magistrate to conduct an inquiry before issue

of process, in a case where the accused resides beyond the

area of jurisdiction of the court. (See: Vijay Dhanuka & Ors.

v. Najima Mamtaj & Ors.

, Abhijit Pawar v. Hemant

1 (2014) 14 SCC 638

10 | P a g e

Madhukar Nimbalkar and Anr.

2 and Birla Corporation

Limited v. Adventz Investments and Holdings Limited &

Ors.

). There has been a divergence of opinion amongst the

High Courts relating to the applicability of Section 202 in

respect of complaints filed under Section 138 of the Act.

Certain cases under Section 138 have been decided by the

High Courts upholding the view that it is mandatory for the

Magistrate to conduct an inquiry, as provided in Section 202 of

the Code, before issuance of process in complaints filed under

Section 138. Contrary views have been expressed in some

other cases. It has been held that merely because the accused

is residing outside the jurisdiction of the court, it is not

necessary for the Magistrate to postpone the issuance of

process in each and every case. Further, it has also been held

that not conducting inquiry under Section 202 of the Code

would not vitiate the issuance of process, if requisite

satisfaction can be obtained from materials available on record.

11. The learned Amici Curiae referred to a judgment of this

Court in K.S. Joseph v. Philips Carbon Black Ltd & Anr.

where there was a discussion about the requirement of inquiry

2 (2017) 3 SCC 528

3 (2019) 16 SCC 610

4 (2016) 11 SCC 105

11 | P a g e

under Section 202 of the Code in relation to complaints filed

under Section 138 but the question of law was left open. In

view of the judgments of this Court in Vijay Dhanuka (supra),

Abhijit Pawar (supra) and Birla Corporation (supra), the

inquiry to be held by the Magistrate before issuance of

summons to the accused residing outside the jurisdiction of the

court cannot be dispensed with. The learned Amici Curiae

recommended that the Magistrate should come to a conclusion

after holding an inquiry that there are sufficient grounds to

proceed against the accused. We are in agreement with the

learned Amici.

12. Another point that has been brought to our notice relates

to the interpretation of Section 202 (2) which stipulates that the

Magistrate shall take evidence of the witness on oath in an

inquiry conducted under Section 202 (1) for the purpose of

issuance of process. Section 145 of the Act provides that the

evidence of the complainant may be given by him on affidavit,

which shall be read in evidence in any inquiry, trial or other

proceeding, notwithstanding anything contained in the Code.

Section 145 (2) of the Act enables the court to summon and

examine any person giving evidence on affidavit as to the facts

12 | P a g e

contained therein, on an application of the prosecution or the

accused. It is contended by the learned Amici Curiae that

though there is no specific provision permitting the examination

of witnesses on affidavit, Section 145 permits the complainant

to be examined by way of an affidavit for the purpose of inquiry

under Section 202. He suggested that Section 202 (2) should

be read along with Section 145 and in respect of complaints

under Section 138, the examination of witnesses also should be

permitted on affidavit. Only in exceptional cases, the

Magistrate may examine the witnesses personally. Section 145

of the Act is an exception to Section 202 in respect of

examination of the complainant by way of an affidavit. There

is no specific provision in relation to examination of the

witnesses also on affidavit in Section 145. It becomes clear

that Section 145 had been inserted in the Act, with effect from

the year 2003, with the laudable object of speeding up trials in

complaints filed under Section 138. If the evidence of the

complainant may be given by him on affidavit, there is no

reason for insisting on the evidence of the witnesses to be

taken on oath. On a holistic reading of Section 145 along with

Section 202, we hold that Section 202 (2) of the Code is

inapplicable to complaints under Section 138 in respect of

13 | P a g e

examination of witnesses on oath. The evidence of witnesses

on behalf of the complainant shall be permitted on affidavit. If

the Magistrate holds an inquiry himself, it is not compulsory

that he should examine witnesses. In suitable cases, the

Magistrate can examine documents for satisfaction as to the

sufficiency of grounds for proceeding under Section 202.

SECTIONS 219 AND 220 OF THE CODE

13. Section 219 of the Code provides that when a person is

accused of more offences than one, of the same kind,

committed within a space of 12 months, he may be tried at one

trial for a maximum of three such offences. If more than one

offence is committed by the same person in one series of acts

so committed together as to form the same transaction, he

may be charged with and tried at one trial, according to Section

220. In his preliminary report, the learned Amici Curiae

suggested that a legislative amendment is required to Section

219 of the Code to avoid multiplicity of proceedings where

cheques have been issued for one purpose. In so far as

Section 220 of the Code is concerned, the learned Amici Curiae

submitted that same/similar offences as part of the same

transaction in one series of acts may be the subject matter of

14 | P a g e

one trial. It was argued by the learned Amici Curiae that

Section 220 (1) of the Code is not controlled by Section 219 and

even if the offences are more than three in respect of the same

transaction, there can be a joint trial. Reliance was placed on

a judgment of this Court in Balbir v. State of Haryana &

Anr.

to contend that all offences alleged to have been

committed by the accused as a part of the same transaction

can be tried together in one trial, even if those offences may

have been committed as a part of a larger conspiracy.

14. The learned Amici Curiae pointed out that the judgment of

this Court in Vani Agro Enterprises v. State of Gujarat &

Ors.

needs clarification. In Vani Agro (supra), this Court was

dealing with the dishonour of four cheques which was the

subject matter of four complaints. The question raised therein

related to the consolidation of all the four cases. As only three

cases can be tried together as per Section 219 of the Code, this

Court directed the Trial Court to fix all the four cases on one

date. The course adopted by this Court in Vani Agro (supra) is

appropriate in view of the mandate of Section 219 of the Code.

Hence, there is no need for any clarification, especially in view

5 (2000) 1 SCC 285

6 2019 (10) SCJ 238

15 | P a g e

of the submission made by the learned Amici that Section 219

be amended suitably. We find force in the submission of the

learned Amici Curiae that one trial for more than three offences

of the same kind within the space of 12 months in respect of

complaints under Section 138 can only be by an amendment.

To reduce the burden on the docket of the criminal courts, we

recommend that a provision be made in the Act to the effect

that a person can be tried in one trial for offences of the same

kind under Section 138 in the space of 12 months,

notwithstanding the restriction in Section 219 of the Code.

15. Offences that are committed as part of the same

transaction can be tried jointly as per Section 220 of the Code.

What is meant by “same transaction” is not defined anywhere

in the Code. Indeed, it would always be difficult to define

precisely what the expression means. Whether a transaction

can be regarded as the same would necessarily depend upon

the particular facts of each case and it seems to us to be a

difficult task to undertake a definition of that which the

Legislature has deliberately left undefined. We have not come

across a single decision of any court which has embarked upon

the difficult task of defining the expression. But it is generally

16 | P a g e

thought that where there is proximity of time or place or unity

of purpose and design or continuity of action in respect of a

series of acts, it may be possible to infer that they form part of

the same transaction. It is, however, not necessary that every

one of these elements should co-exist for a transaction to be

regarded as the same. But if several acts committed by a

person show a unity of purpose or design that would be a

strong circumstance to indicate that those acts form part of the

same transaction7

. There is no ambiguity in Section 220 in

accordance with which several cheques issued as a part of the

same transaction can be the subject matter of one trial.

16. The learned Amici Curiae have brought to our notice that

separate complaints are filed under Section 138 of the Act for

dishonour of cheques which are part of the same transaction.

Undue delay in service of summons is the main cause for the

disproportionate accumulation of complaints under Section 138

before the courts. The learned Amici suggested that one way

of reducing the time spent on service of summons is to treat

service of summons served in one complaint pertaining to a

transaction as deemed service for all complaints in relation to

the said transaction. We are in agreement with the suggestion

7 State of Andhra Pradesh v. Cheemalapati Ganeswara Rao & Anr., (1964) 3 SCR 297

17 | P a g e

made by the learned Amici Curiae. Accordingly, the High

Courts are requested to issue practice directions to the Trial

Courts to treat service of summons in one complaint forming

part of a transaction, as deemed service in respect of all the

complaints filed before the same court relating to dishonour of

cheques issued as part of the said transaction.

INHERENT POWERS OF THE MAGISTRATE

17. In K. M. Mathew v. State of Kerala & Anr.

, this Court

dealt with the power of the Magistrate under Chapter XX of the

Code after the accused enters appearance in response to the

summons issued under Section 204 of the Code. It was held

that the accused can plead before the Magistrate that the

process against him ought not to have been issued and the

Magistrate may drop the proceedings if he is satisfied on

reconsideration of the complaint that there is no offence for

which the accused could be tried. This Court was of the opinion

that there is no requirement of a specific provision for the

Magistrate to drop the proceedings and as the order issuing the

process is an interim order and not a judgment, it can be varied

or recalled. The observation in the case of K. M. Mathew

(supra) that no specific provision of law is required for recalling

8 (1992) 1 SCC 217

18 | P a g e

an erroneous order of issue of process was held to be contrary

to the scheme of the Code in Adalat Prasad v. Rooplal

Jindal and Others

. It was observed therein that the order

taking cognizance can only be subject matter of a proceeding

under Section 482 of the Code as subordinate criminal courts

have no inherent power. There is also no power of review

conferred on the Trial Courts by the Code. As there is no

specific provision for recalling an erroneous order by the Trial

Court, the judgment in the case of K. M. Mathew (supra) was

held to be not laying down correct law. The question whether a

person can seek discharge in a summons case was considered

by this Court in Subramanium Sethuraman v. State of

Maharashtra & Anr.

. The law laid down in Adalat Prasad

(supra) was reiterated.

18. It was contended by learned Amici Curiae that a holistic

reading of Sections 251 and 258 of the Code, along with

Section 143 of the Act, should be considered to confer a power

of review or recall of the issuance of process by the Trial Court

in relation to complaints filed under Section 138 of the Act. He

referred to a judgment of this Court in Meters and

9 (2004) 7 SCC 338

10 (2004) 13 SCC 324

19 | P a g e

Instruments Private Limited and Another v. Kanchan

Mehta

which reads as follows:

“While it is true that in Subramanium

Sethuraman v. State of Maharashtra this Court

observed that once the plea of the accused is

recorded under Section 252 CrPC, the procedure

contemplated under Chapter XX CrPC has to be

followed to take the trial to its logical conclusion, the

said judgment was rendered as per statutory

provisions prior to the 2002 Amendment. The

statutory scheme post-2002 Amendment as

considered in Mandvi Coop. Bank and J.V.

Baharuni has brought about a change in law and it

needs to be recognised. After the 2002 Amendment,

Section 143 of the Act confers implied power on the

Magistrate to discharge the accused if the

complainant is compensated to the satisfaction of the

court, where the accused tenders the cheque amount

with interest and reasonable cost of litigation as

assessed by the court. Such an interpretation was

consistent with the intention of legislature. The court

has to balance the rights of the complainant and the

accused and also to enhance access to justice. Basic

object of the law is to enhance credibility of the

cheque transactions by providing speedy remedy to

the complainant without intending to punish the

drawer of the cheque whose conduct is reasonable or

where compensation to the complainant meets the

ends of justice. Appropriate order can be passed by

the court in exercise of its inherent power under

Section 143 of the Act which is different from

compounding by consent of parties. Thus, Section

258 CrPC which enables proceedings to be stopped in

a summons case, even though strictly speaking is not

applicable to complaint cases, since the provisions of

CrPC are applicable “so far as may be”, the principle

of the said provision is applicable to a complaint case

covered by Section 143 of the Act which

contemplates applicability of summary trial

provisions, as far as possible i.e. with such deviation

as may be necessary for speedy trial in the context.”

11 (2018) 1 SCC 560

20 | P a g e

19. In Meters and Instruments (supra), this Court was of

the opinion that Section 143 of the Act confers implied power

on the Magistrate to discharge the accused, if the complainant

is compensated to the satisfaction of the court. On that

analogy, it was held that apart from compounding by the

consent of the parties, the Trial Court has the jurisdiction to

pass appropriate orders under Section 143 in exercise of its

inherent power. Reliance was placed by this Court on Section

258 of the Code to empower the Trial Courts to pass suitable

orders.

20. Section 143 of the Act mandates that the provisions of

summary trial of the Code shall apply “as far as may be” to

trials of complaints under Section 138. Section 258 of the Code

empowers the Magistrate to stop the proceedings at any stage

for reasons to be recorded in writing and pronounce a judgment

of acquittal in any summons case instituted otherwise than

upon complaint. Section 258 of the Code is not applicable to a

summons case instituted on a complaint. Therefore, Section

258 cannot come into play in respect of the complaints filed

under Section 138 of the Act. The judgment of this Court in

Meters and Instruments (supra) in so far as it conferred

21 | P a g e

power on the Trial Court to discharge an accused is not good

law. Support taken from the words “as far as may be” in

Section 143 of the Act is inappropriate. The words “as far as

may be” in Section 143 are used only in respect of applicability

of Sections 262 to 265 of the Code and the summary procedure

to be followed for trials under Chapter XVII. Conferring power

on the court by reading certain words into provisions is

impermissible. A judge must not rewrite a statute, neither to

enlarge nor to contract it. Whatever temptations the

statesmanship of policy-making might wisely suggest,

construction must eschew interpolation and evisceration. He

must not read in by way of creation12

. The Judge’s duty is to

interpret and apply the law, not to change it to meet the

Judge’s idea of what justice requires13. The court cannot add

words to a statute or read words into it which are not there14

21. A close scrutiny of the judgments of this Court in Adalat

Prasad (supra) and Subramanium Sethuraman (supra)

would show that they do not warrant any reconsideration. The

Trial Court cannot be conferred with inherent power either to

review or recall the order of issuance of process. As held

12 J. Frankfurter, “Of Law and Men: Papers and Addresses of Felix Frankfurter”.

13 Dupont Steels Ltd. v. Sirs (1980) 1 All ER 529 (HL)

14 Union of India v. Deoki Nandan Aggarwal 1992 Supp (1) SCC 323

22 | P a g e

above, this Court, in its anxiety to cut down delays in the

disposal of complaints under Section 138, has applied Section

258 to hold that the Trial Court has the power to discharge the

accused even for reasons other than payment of compensation.

However, amendment to the Act empowering the Trial Court to

reconsider/recall summons may be considered on the

recommendation of the Committee constituted by this Court

which shall look into this aspect as well.

22. Another submission made by the learned Amici Curiae

relates to the power of the Magistrate under Section 322 of the

Code, to revisit the order of issue of process if he has no

jurisdiction to try the case. We are in agreement with the

learned Amici Curiae that in case the Trial Court is informed

that it lacks jurisdiction to issue process for complaints under

Section 138 of the Act, the proceedings shall be stayed and the

case shall be submitted to the Chief Judicial Magistrate or such

other Magistrate having jurisdiction.

23. Though we have referred all the other issues which are

not decided herein to the Committee appointed by this Court

on 10.03.2021, it is necessary to deal with the complaints

under Section 138 pending in Appellate Courts, High Courts and

23 | P a g e

in this Court. We are informed by the learned Amici Curiae that

cases pending at the appellate stage and before the High

Courts and this Court can be settled through mediation. We

request the High Courts to identify the pending revisions arising

out of complaints filed under Section 138 of the Act and refer

them to mediation at the earliest. The Courts before which

appeals against judgments in complaints under Section 138 of

the Act are pending should be directed to make an effort to

settle the disputes through mediation.

24. The upshot of the above discussion leads us to the

following conclusions:

1) The High Courts are requested to issue practice

directions to the Magistrates to record reasons before

converting trial of complaints under Section 138 of the

Act from summary trial to summons trial.

2) Inquiry shall be conducted on receipt of complaints

under Section 138 of the Act to arrive at sufficient

grounds to proceed against the accused, when such

accused resides beyond the territorial jurisdiction of

the court.

24 | P a g e

3) For the conduct of inquiry under Section 202 of the

Code, evidence of witnesses on behalf of the

complainant shall be permitted to be taken on

affidavit. In suitable cases, the Magistrate can restrict

the inquiry to examination of documents without

insisting for examination of witnesses.

4) We recommend that suitable amendments be made to

the Act for provision of one trial against a person for

multiple offences under Section 138 of the Act

committed within a period of 12 months,

notwithstanding the restriction in Section 219 of the

Code.

5) The High Courts are requested to issue practice

directions to the Trial Courts to treat service of

summons in one complaint under Section 138 forming

part of a transaction, as deemed service in respect of

all the complaints filed before the same court relating

to dishonour of cheques issued as part of the said

transaction.

6) Judgments of this Court in Adalat Prasad (supra) and

Subramanium Sethuraman (supra) have interpreted

25 | P a g e

the law correctly and we reiterate that there is no

inherent power of Trial Courts to review or recall the

issue of summons. This does not affect the power of

the Trial Court under Section 322 of the Code to revisit

the order of issue of process in case it is brought to the

court’s notice that it lacks jurisdiction to try the

complaint.

7) Section 258 of the Code is not applicable to complaints

under Section 138 of the Act and findings to the

contrary in Meters and Instruments (supra) do not

lay down correct law. To conclusively deal with this

aspect, amendment to the Act empowering the Trial

Courts to reconsider/recall summons in respect of

complaints under Section 138 shall be considered by

the Committee constituted by an order of this Court

dated 10.03.2021.

8) All other points, which have been raised by the Amici

Curiae in their preliminary report and written

submissions and not considered herein, shall be the

subject matter of deliberation by the aforementioned

Committee. Any other issue relating to expeditious

26 | P a g e

disposal of complaints under Section 138 of the Act

shall also be considered by the Committee.

25. List the matter after eight weeks. Further hearing in this

matter will be before 3-Judges Bench.

26. We place on record our appreciation for the valuable

assistance rendered by Mr. Sidharth Luthra, learned Senior

Counsel and Mr. K. Parameshwar, learned Counsel, as Amici

Curiae.

......................CJI.

[ S. A. BOBDE ]

..................................J.

[ L. NAGESWARA RAO ]

........................J.

[B. R. GAVAI ]

............................J.

[ A. S. BOPANNA ]

....................................J.

[ S. RAVINDRA BHAT ]

New Delhi,

April 16, 2021

27 | P a g e

While discharging the accused, the High Court has gone into the merits of the case and has considered whether on the basis of the material on record, the accused is likely to be convicted or not. For the aforesaid, the High Court has considered in detail the transcript of the conversation between the complainant and the accused which exercise at this stage to consider the discharge application and/or framing of the charge is not permissible at all. As rightly observed and held by the learned Special Judge at the stage of framing of the charge, it has to be seen whether or not a prima facie case is made out and the defence of the accused is not to be considered. After considering the material on record including the transcript of the conversation between the complainant and the accused, the learned Special Judge having found that there is a prima facie case of the alleged offence under Section 7 of the PC Act, framed the charge against the accused for the said offence. The High Court materially erred in negating the exercise of considering the transcript in detail and in considering whether on the basis of the material on record the accused is likely to be convicted for the offence under Section 7 of the PC Act or not.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEALLATE JURISDICTION

CRIMINAL APPEAL NO. 407 OF 2021

(Arising from S.L.P.(Criminal) No. 3194 of 2021)

Diary No. 8524/2020

State of Rajasthan …Appellant

Versus

Ashok Kumar Kashyap …Respondent

J U D G M E N T

M.R. SHAH, J.

1. In the facts and circumstances of the case and having heard the

learned counsel for the respective parties, the delay caused in filing the

special leave petition is hereby condoned.

1A. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 12.09.2018 passed by the High Court of Rajasthan,

Bench at Jaipur in S.B. Criminal Revision No. 1270 of 2018, by which

the High Court, in exercise of its revisional jurisdiction, has quashed the

order passed by the learned Special Judge, Prevention of Corruption

Act, Bharatpur dated 22.06.2018 framing the charge against the

respondent-accused for the offence under Section 7 of the Prevention of

Corruption Act (for short, ‘PC Act’) and consequently has discharged the

accused of the alleged offence under Section 7 of the PC Act, the State

has preferred the present appeal.

3. That the respondent herein – original accused was serving as a

Patwari. That the original complainant Jai Kishore and one another on

31.08.2010 submitted a written report before the Additional

Superintendent of Police, Anti-Corruption Bureau, Bharatpur stating that

for the purpose of issuing Domicile Certificate and OBC Certificate of his

son, he has submitted an application enclosed with complete certificates

before the accused – Patwari Ashok Kumar Kashyap for endorsing his

report. However, the Patwari in lieu of endorsing his report over the said

application demanded a bribe of Rs.2,800/-. Thereafter after conducting

the investigation a chargesheet came to be filed by the investigating

agency against the accused for the offence under Section 7 of the PC

Act. That the learned Special Judge heard the prosecution as well as

the defence at the time of framing of the charge. After hearing the

prosecution as well as the counsel for the defence and considering the

material on record which included the transcript of conversation recorded

between the complainant and the accused and considering the other

material on record and having found that there is a prima facie case

made out and the defence of the accused is not to be considered at this

stage, by order dated 22.06.2018 framed the charge against the

accused for the offence under Section 7 of the PC Act.

4. Feeling aggrieved and dissatisfied with the order passed by the

learned Special Judge framing the charge against the accused under

Section 7 of the PC Act, the accused preferred revision application

before the High Court by filing Criminal Revision No. 1270 of 2018.

4.1 Before the High Court, it was contended on behalf of the accused

that no case is made out under Section 7 of the PC Act, even on the

basis of the transcript recording the conversation between the

complainant and the accused. It was submitted that it is borne out from

the transcript that the accused in fact refused to give bonafide residence

certificate and returned the form on 29.08.2010 and that no work was

pending before him. It was also contended that on reading the entire

transcript the factum of demand of Rs.2,800/- is not revealed.

4.2 The revision application was opposed by the learned Public

Prosecutor. Heavy reliance was placed on the decision of this Court in

the case of Chitresh Kumar Chopra v. State (Govt, of NCT of Delhi), AIR

2010 SC 1446 and it was submitted that as held by this Court that at the

stage of framing of charge, the Court is required to evaluate the material

and documents on record with a view to finding out if the facts emerging

therefrom, taken at their face value, disclose the existence of all the

ingredients constituting the alleged offence. It was submitted that from

the transcript it is evident that bribe was demanded from the

complainant.

4.3 That by the impugned judgment and order, the High Court has

allowed the said revision application and has quashed and set aside the

order passed by the learned Special Judge framing the charge against

the accused for the offence under Section 7 of the PC Act and

consequently discharged the accused from the alleged offence by

observing in paragraphs 10 & 11 as under:

“10. In the present case in hand, complainant himself when he

moved to the Anti Corruption Department mentioned that petitioner had

returned the form without making report. From the transcript which is

available on record, it is evident that some prior transactions pertaining

to bank file was pending between the parties and matter pertained to

Rs. 4,850/- out of which as per the petitioner, Rs. 4,000/- was to be

paid to the bank and in the transcript he has explained the total amount

which was payable by the complainant. There is no specific demand for

making a bonafide residence certificate, rather, petitioner had

mentioned in the transcript that as the complainant and his son are

residing in Agra (U.P.), a bonafide residence certificate cannot be

issued. No trap proceedings were conducted in the case and the

matter has remained pending with the Anti Corruption for a period of

more than five years. There is no specific demand of money by

petitioner and on the date of transcript no matter was pending before

him.

11. In view of the same, it is evident from bare reading of the

transcript that offence under Section 7 of the Prevention of Corruption

Act would not be made out against the petitioner.”

5. Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court, discharging the accused and

quashing and setting aside the order of framing charge by the learned

Special Judge, in exercise of its revisional jurisdiction, the State has

preferred the present appeal.

6. Mr. Vishal Meghwal, learned Advocate appearing on behalf of the

State has vehemently submitted that in the facts and circumstances of

the case, the High Court has erred in discharging the accused of the

charged offence when there is ample material and evidence on record

against the accused and sufficient grounds are available for proceeding

against the accused.

6.1 It is submitted that the High Court has failed to appreciate that at

the stage of framing of charge and/or consideration of an application for

discharge, the Court is to consider whether there is any prima facie case

made out against the accused or not and at that stage the Court is

required to evaluate the material and documents relied on by the

prosecution only with a view to find out whether the facts emerging

therefrom, if taken at their face value, disclose the existence of all the

ingredients constituting the alleged offence or not.

6.2 It is submitted that in the present case the High Court has

committed a grave error in evaluating the transcript/evidence on merits

which at the stage of considering the application for discharge is not

permissible.

6.3 It is further submitted by the learned Advocate appearing on behalf

of the State that in the present case even otherwise from the transcript

recording the conversation between the complainant and the accused a

case of demand of illegal gratification has been made out. It is

submitted that the accused has been charged for the offence under

Section 7 of the PC Act and therefore even an attempt is sufficient to

attract the offence under Section 7 of the PC Act. It is submitted that

therefore the High Court has erred in evaluating the evidence on record

on merits at the stage of considering the discharge application which, as

such, is impermissible and beyond the scope of the exercise of the

revisional jurisdiction.

6.4 Learned Advocate appearing on behalf of the State has heavily

relied upon the decisions of this Court in the cases of P. Vijayan v. State

of Kerana, (2010) 2 SCC 398; Srilekha Sentil Kumar v. Deputy

Superintendent of Police, CBI, ACB, Chennai, (2019) 7 SCC 82; Asim

Shariff v. National Investigation Agency (2019) 7 SCC 148; and State of

Karnataka Lokayukta, Police Station, Bengaluru v. M.R. Hiremath,

(2019) 7 SCC 515.

7. Learned Advocate appearing on behalf of the respondent-accused

has vehemently submitted that in the facts and circumstances of the

case and as it was found from the transcript recording the conversation

between the complainant and the accused that no case, at all, has been

made out against the accused for the offence under Section 7 of the PC

Act, the High Court has rightly discharged the accused by quashing and

setting aside the order passed by the learned Special Judge framing

charge against the accused. It is vehemently submitted by the learned

Advocate for the respondent-accused that, as such, the accused refused

to issue residence certificate and caste certificate having come to know

about the complaint being the permanent resident of Agra. It is submitted

that in fact the complainant wanted a false residence certificate and

caste certificate illegally to be made in the State of Rajasthan, though he

was the permanent resident of Agra. It is submitted that in fact the

respondent-accused gave a report rejecting the request of the

complainant on 29.08.2010 and therefore, as such, there was nothing

pending before the accused and the decision regarding his application

was already taken.

7.1 It is submitted that in fact even as per the case of the prosecution

and even the complainant the trap failed and the accused refused to

accept the bribe in the trap proceedings.

7.2 It is submitted that at the time of conversation two persons were

present, (1) the complainant – Jai Kishore; and (2) Devi Singh. It is

submitted that there was a mixing of the conversation with the

complainant as well as Devi Singh. It is submitted that so far as the

complainant is concerned, the accused categorically refused to accept

any bribe. However, it is submitted that the appellant has tried to

confuse and mislead the Court by mixing the conversation of Devi Singh

regarding his dues of Rs.4,850-/ to the bank against which he has paid

Rs.2,000/- and the remaining amount of Rs.2,850/- was due to the bank.

It is submitted that therefore so far as the complainant is concerned,

neither there was any acceptance nor there was any demand of bribe

and therefore having found on the basis of the material/evidence on

record that no case is made out against the accused for the offence

under Section 7 of the PC Act, the High Court has rightly discharged the

accused.

7.3 Learned counsel appearing on behalf of the accused has heavily

relied upon the decision of this Court in the case of Dilawar Balu Kurane

v. State of Maharashtra, (2002) 2 SCC 135 and has submitted that as

held by this Court the Court while exercising powers under Section 227

Cr.P.C. and while considering the question of framing of the charge has

the undoubted power to sift and weigh the evidence for the limited

purpose of finding out whether or not a prima facie case against accused

is made out and where the material placed before the Court discloses

grave suspicion against the accused which has not been properly

explained, the court will be fully justified in framing of the charge and

proceeding with the trial, however, by and large if two views are equally

possible and the Judge is satisfied that the evidence produced before

him will give rise to some suspicion but not grave suspicion against the

accused, he will be fully justified to discharge the accused. It is

submitted that therefore in the present case the High Court was justified

in evaluating the evidence on record to come to a conclusion whether

there is any sufficient material/evidence making out a case for the

offence under Section 7 of the PC Act or not.

7.4 Number of other submissions have been made by the learned

counsel for the respective parties on merits after taking us in detail to the

transcript recording the conversation between the complainant and the

accused. However, at the stage of framing of the charge and/or while

considering the discharge application, we do not propose to go into in

detail on merits of the allegations and the evidence on record as for the

reasons stated hereinbelow the same is not permissible at this stage.

8. We have heard the learned counsel for the respective parties.

By the impugned judgment and order, the High Court in exercise of

its revisional jurisdiction has set aside the order passed by the learned

Special Judge framing the charge against the accused under Section 7

of the PC Act and consequently has discharged the accused for the said

offence. What has been weighed with the High Court while discharging

the accused is stated in paragraphs 10 & 11 of the impugned judgment

and order, which are reproduced hereinabove.

9. While considering the legality of the impugned judgment and order

passed by the High Court, the law on the subject and few decisions of

this Court are required to be referred to.

9.1 In the case of P.Vijayan (supra), this Court had an occasion to

consider Section 227 of the Cr.P.C. What is required to be considered at

the time of framing of the charge and/or considering the discharge

application has been considered elaborately in the said decision. It is

observed and held that at the stage of Section 227, the Judge has

merely to sift the evidence in order to find out whether or not there is

sufficient ground for proceeding against the accused. It is observed that

in other words, the sufficiency of grounds would take within its fold the

nature of the evidence recorded by the police or the documents

produced before the Court which ex facie disclose that there are

suspicious circumstances against the accused so as to frame a charge

against him. It is further observed that if the Judge comes to a

conclusion that there is sufficient ground to proceed, he will frame a

charge under Section 228 Cr.P.C., if not, he will discharge the accused.

It is further observed that while exercising its judicial mind to the facts of

the case in order to determine whether a case for trial has been made

out by the prosecution, it is not necessary for the court to enter into the

pros and cons of the matter or into a weighing and balancing of evidence

and probabilities which is really the function of the court, after the trial

starts.

9.2 In the recent decision of this Court in the case of M.R. Hiremath

(supra), one of us (Justice D.Y. Chandrachud) speaking for the Bench

has observed and held in paragraph 25 as under:

25. The High Court ought to have been cognizant of the fact

that the trial court was dealing with an application for

discharge under the provisions of Section 239 CrPC. The

parameters which govern the exercise of this jurisdiction have

found expression in several decisions of this Court. It is a

settled principle of law that at the stage of considering an

application for discharge the court must proceed on the

assumption that the material which has been brought on the

record by the prosecution is true and evaluate the material in

order to determine whether the facts emerging from the

material, taken on its face value, disclose the existence of the

ingredients necessary to constitute the offence. In State of

T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014)

11 SCC 709, adverting to the earlier decisions on the subject,

this Court held: (SCC pp. 721-22, para 29)

“29. … At this stage, probative value of the materials has to

be gone into and the court is not expected to go deep into

the matter and hold that the materials would not warrant a

conviction. In our opinion, what needs to be considered is

whether there is a ground for presuming that the offence

has been committed and not whether a ground for

convicting the accused has been made out. To put it

differently, if the court thinks that the accused might have

committed the offence on the basis of the materials on

record on its probative value, it can frame the charge;

though for conviction, the court has to come to the

conclusion that the accused has committed the offence. The

law does not permit a mini trial at this stage.”

10. We shall now apply the principles enunciated above to the present

case in order to find out whether in the facts and circumstances of the

case, the High Court was justified in discharging the accused for the

offence under Section 7 of the PC Act.

11. Having considered the reasoning given by the High Court and the

grounds which are weighed with the High Court while discharging the

accused, we are of the opinion that the High Court has exceeded in its

jurisdiction in exercise of the revisional jurisdiction and has acted beyond

the scope of Section 227/239 Cr.P.C. While discharging the accused,

the High Court has gone into the merits of the case and has considered

whether on the basis of the material on record, the accused is likely to

be convicted or not. For the aforesaid, the High Court has considered in

detail the transcript of the conversation between the complainant and the

accused which exercise at this stage to consider the discharge

application and/or framing of the charge is not permissible at all. As

rightly observed and held by the learned Special Judge at the stage of

framing of the charge, it has to be seen whether or not a prima facie

case is made out and the defence of the accused is not to be

considered. After considering the material on record including the

transcript of the conversation between the complainant and the accused,

the learned Special Judge having found that there is a prima facie case

of the alleged offence under Section 7 of the PC Act, framed the charge

against the accused for the said offence. The High Court materially

erred in negating the exercise of considering the transcript in detail and

in considering whether on the basis of the material on record the

accused is likely to be convicted for the offence under Section 7 of the

PC Act or not. As observed hereinabove, the High Court was required to

consider whether a prima facie case has been made out or not and

whether the accused is required to be further tried or not. At the stage of

framing of the charge and/or considering the discharge application, the

mini trial is not permissible. At this stage, it is to be noted that even as

per Section 7 of the PC Act, even an attempt constitutes an offence.

Therefore, the High Court has erred and/or exceeded in virtually holding

a mini trial at the stage of discharge application.

12. We are not further entering into the merits of the case and/or

merits of the transcript as the same is required to be considered at the

time of trial. Defence on merits is not to be considered at the stage of

framing of the charge and/or at the stage of discharge application.

13. In view of the above and for the reasons stated above, the

impugned judgment and order passed by the High Court discharging the

accused under Section 7 of the PC Act is unsustainable in law and the

same deserves to be quashed and set aside and is accordingly hereby

quashed and set aside and the order passed by the learned Special

Judge framing charge against the accused under Section 7 of the PC

Act is hereby restored. Now the case is to be tried against the accused

by the competent court for the offence under Section 7 of the PC Act, in

accordance with law and its own merits.

………………………………………..J.

[Dr. Dhananjaya Y. Chandrachud]

New Delhi; ………………………………………..J.

April 13, 2021. [M.R. Shah]

B. Pharma course=The respondent No.1-University is therefore directed to grant affiliation to the petitioner colleges for the academic year 2020-21 and also permit the students of the petitioner colleges to participate in the special examinations to be organized by the respondent No.1- University for the academic year 2020-21 in view of the notification dated 19th March 2021.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO.390 OF 2021

VIIT PHARMACY COLLEGE AND ANOTHER ...PETITIONER(S)

VERSUS

DR. A.P.J. ABDUL KALAM TECHNICAL

UNIVERSITY AND ANOTHER ...RESPONDENT(S)

O R D E R

B.R. GAVAI, J.

The petitioners have approached this Court seeking a direction to

the respondent No.1-Dr. A.P.J. Abdul Kalam Technical University

(hereinafter referred to as the ‘University’) to grant affiliation for B.

Pharma course to the petitioner colleges for the academic year 2020-

21 with further direction to respondent No.1-University to organize

special examinations for B. Pharma students for academic year 2020-

21 in view of the notification dated 19th March 2021.

2. The facts in brief giving rise to the petition are as under:-

On 28th January 2020, the respondent No.1-University invited

applications for grant of affiliation for the year 2020-21. In response

thereto, the petitioners submitted applications in the month of February

2020 seeking affiliation for B. Pharma course for the year 2020-21. It

is pertinent to note that the Pharmacy Council of India (hereinafter

referred to as the ‘PCI’) granted its approval to the petitioner No.1-VIIT

Pharmacy College vide order dated 10th April 2020 for conduct of first

year B. Pharma course for the academic year 2020-21 with intake

capacity of 100 admissions/students. Insofar as the petitioner No.2-

RV Institute of Pharmacy is concerned, a similar approval was also

granted; however with the intake capacity of 60 admissions/students.

The same was subject to submission of consent of affiliation of

Examining Authority and NOC of the State Government.

3. In the meantime, the respondent No.2-State of Uttar Pradesh

came up with the policy dated 15th May 2020 for restricting the number

of pharmacy colleges to only two per district. The said policy came to

be challenged before the High Court of Allahabad in bunch of petitions

being Misc. Single No. 12536 of 2020 filed by Zee College of

Pharmacy with companion matters. The Allahabad High Court vide

judgment and order dated 2nd November 2020, relying on the judgment

of this Court in the case of Pharmacy Council of India v. Dr. S.K.

Toshiwal Educational Trusts Vidarbha Institute of Pharmacy and

Others Etc.1

set aside the policy dated 15th May 2020, only insofar as

the petitioners who had approached the High Court. The petitioner

institutions therein were permitted to participate in the counselling

being conducted for admission to Bachelors of Pharmacy course for

the academic year 2020-21.

4. The petitioner No.1, relying on the order of the High Court dated

nd November 2020, also filed writ petition being Misc. Single No.

19510 of 2020 before the Allahabad High Court. The said petition was

also allowed and the policy dated 15th May 2020 was set aside with

respect to the petitioner therein and the respondents were directed to

take a decision on the application of the petitioner for affiliation in

accordance with law. A similar petition being Misc. Single No. 19509

of 2020 came to be filed by petitioner No.2 which too was allowed on

like terms. Likewise, one S.D. College of Sciences had also filed a writ

petition being Misc. Single No. 19568 of 2020 which was similarly

allowed. All the above three petitions were allowed by the High Court

vide order dated 9th November 2020.

5. However, the respondent No.1-University vide impugned order

dated 7th December 2020, rejected the application of S.D. College of

Sciences for grant of affiliation. The present petitioners along with one

1 2020 SCC OnLine SC 296

another institution thereafter filed Writ Petition (C) No. 1468 of 2020

before this Court in the month of December 2020. This Court vide

order dated 12th January 2021 stayed the operation of the order dated

th December 2020 passed by respondent No.1-University and tagged

the said petition along with Writ Petition (C) No. 1430 of 2020 filed by

Rakshpal Bahadur Pharmacy Institute.

6. It is the contention of the petitioners, that in March 2021 though

the students of the petitioner colleges were invited to the examination

centre, they were not permitted to participate in the exam at the last

moment. It is also the contention of the petitioners, that in view of the

order dated 5th March 2021, passed by this Court in I.A. No.33272 of

2021 in Writ Petition (C) No. 1433 of 2020, students of one Zee

College of Pharmacy were permitted to participate in the examination.

7. In the meantime, vide order dated 19th March 2021, the State

Government, after considering the recommendations made by the

Affiliation Committee, has granted conditional affiliation for admission

in B. Pharma course, in compliance of the order of the High Court

passed in Writ Petition (C) No. 12536 of 2020.

8. Since the respondent No.1-University refused to grant affiliation

to the petitioners and has refused to permit their students to appear for

the first year B. Pharma examination, the petitioners have approached

this Court.

9. This Court, in the case of, Dr. S.K. Toshiwal Educational

Trusts Vidarbha Institute of Pharmacy (supra), has held as under:-

“87. In view of the above and for the reasons stated

above, it is held that in the field of Pharmacy Education

and more particularly so far as the recognition of degrees

and diplomas of Pharmacy Education is concerned, the

Pharmacy Act, 1948 shall prevail. The norms and

regulations set by the PCI and other specified authorities

under the Pharmacy Act would have to be followed by the

concerned institutions imparting education for degrees

and diplomas in Pharmacy, including the norms and

regulations with respect to increase and/or decrease in

intake capacity of the students and the decisions of the

PCI shall only be followed by the institutions imparting

degrees and diplomas in Pharmacy. The questions are

answered accordingly.”

10. Indisputably, in the present case, the PCI has granted approval

to both the petitioners vide order dated 10th April 2020, with intake

capacity of 100 and 60 admissions/students respectively. Not only

that, the petitions filed by the petitioners challenging the policy

decision of the State Government dated 15th May 2020, have been

allowed by the High Court vide judgment and order dated 9th

November 2020. Indisputably, the State Government also vide

notification dated 19th March 2021, has granted conditional affiliation

after considering the recommendations made by the Affiliation

Committee. In the peculiar facts and circumstances of the case and

particularly, taking into consideration, that the averments made on

affidavit by the petitioners, are not controverted by the respondent

No.1-University, we find that the petition deserves to be allowed.

11. The respondent No.1-University is therefore directed to grant

affiliation to the petitioner colleges for the academic year 2020-21 and

also permit the students of the petitioner colleges to participate in the

special examinations to be organized by the respondent No.1-

University for the academic year 2020-21 in view of the notification

dated 19th March 2021.

12. The petition is allowed in the aforesaid terms.

…..….......................J.

[R.F. NARIMAN]

…….........................J.

[B.R. GAVAI]

.................................J.

[HRISHIKESH ROY]

NEW DELHI;

APRIL 15, 2021.

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Tuesday, April 20, 2021

seeking to protect two species of birds namely the Great Indian Bustard (‘GIB’ for short) and the Lesser 1 Florican, which is on the verge of extinction.