‘creamy layer’ amongst the backward classes, this Court held that persons from backward classes who occupied posts in higher services like IAS, IPS and All India Services had reached a higher level of social advancement and economic status and therefore, were not entitled to be treated as backward. Such persons were to be treated as ‘creamy layer’ without any further inquiry. Likewise, people with sufficient income who were in a position to provide employment to others should also be taken to have reached a higher social status and therefore, 2 (2000) 1 SCC 168 16 | P a g e should be treated as outside the backward class. Similarly, persons from backward classes who had higher agricultural holdings or were receiving income from properties, beyond a prescribed limit, do not deserve the benefit of reservation. The above-mentioned categories were necessarily to be excluded from backward classes. Therefore, we quash the notification dated 17.08.2016, giving liberty to the State Government to issue a fresh notification within a period of 3 months from today after taking into account the principles laid down by this Court in Indra Sawhney-I and the criteria mentioned in Section 5(2) of the 2016 Act for determining ‘creamy layer’.

 Non-Reportable IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL/APPELLATE JURISDICTION Writ Petition (Civil) No. 60 of 2019 PICHRA WARG KALYAN MAHASABHA HARYANA (Regd.) & ANR. .... Petitioners Versus THE STATE OF HARYANA & ANR. ….Respondents With Civil Appeal No.4952 of 2021 (Arising out of SLP (C) No. 21893 of 2018) Civil Appeal Nos.4953-4954 of 2021 (Arising out of SLP(C) Nos. 32168-32169 of 2018 J U D G E M E N T L. NAGESWARA RAO, J. Leave granted in SLP (C) No.21893 of 2018 & SLP (C) Nos.32168-32169 of 2018. 1. Writ Petition (C) No. 60 of 2019 has been filed under Article 32 of the Constitution of India for quashing notifications dated 17.08.2016 and 28.08.2018 issued by the First Respondent as arbitrary and violative of Articles 14, 15 and 16 of the Constitution of India. A further direction is 1 | P a g e sought for a fresh survey and verification of data for identification and specification of ‘creamy layer’ as per the provisions of the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016 (hereinafter referred to as, the ‘2016 Act’). The Petitioners have also sought for a direction to the Respondents to provide reservation to backward classes in Haryana under the 2016 Act by considering the existing defined criteria of ‘creamy layer’ by the National Commission for Backward Classes or the criteria used by the State of Haryana prior to the 2016 Act. 2. Reservation in backward classes as recommended by the Mandal Commission was scrutinised by this Court in Indra Sawhney v. Union of India 1 (hereinafter referred to as, ‘Indra Sawhney-I’). In the said judgement, this Court recommended constitution of a permanent body at the Central level and at the level of the States to deal with the inclusion, under-inclusion and over-inclusion of groups in the lists of other backward classes of citizens. This Court directed State Governments to identify ‘creamy layer’ amongst the backward classes and exclude them from the purview of reservation. Pursuant to the directions issued in 1 1992 Supp (3) SCC 217 2 | P a g e Indra Sawhney-I, the Haryana Second Backward Classes Commission was constituted on 12.10.1993. The said Commission was assigned the function of specifying the basis for excluding socially advanced persons / creamy layer from the backward classes. On 16.05.1995, the Haryana Second Backward Classes Commission submitted its report recommending the criteria for excluding socially advanced persons/sections (creamy layer) from the backward classes. The State Government accepted the recommendations of the Commission and decided that the benefit of reservation shall not extend to persons/sections mentioned in Annexure ‘A’ to the circular dated 07.06.1995 issued by the Commissioner and Secretary to Government of Haryana, Welfare and Scheduled Castes and Backward Classes Department. The said Annexure ‘A’ included the children of those who held Constitutional Posts, who were Class I Officers of the All India Central and State Services (Direct Recruits), Class II Officers of the Central and State Services (Direct Recruits), employees in Public Sector Undertakings etc., and personnel belonging to Armed Forces including Para Military Forces (excluding persons holding civil posts). Children of persons belonging to a family which owned more than the permissible land under the statute of Haryana pertaining to ceiling on 3 | P a g e land holdings were also covered under Annexure ‘A’. Another category specified in Annexure ‘A’ was with respect to the children of persons with gross annual income of Rs. 1 lakh or above or possessing wealth above the exemption limit as prescribed in the Wealth Tax Act, 1957 for a period of three consecutive years. Lastly, Annexure ‘A’ brought within its fold children of persons of all other listed categories who were not disentitled to the benefit of reservation but had income from other sources of wealth bringing them within the aforementioned income / wealth criteria. 3. On 31.08.2010, the Financial Commissioner and Principal Secretary to Government of Haryana, Welfare of Scheduled Castes & Backward Classes Department informed the relevant authorities that the State Government had decided to raise income limit to Rs. 4.5 lakh for determining ‘creamy layer’ amongst the backward classes under the income / wealth criteria. Later, the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016 was enacted to provide for reservation in services and admission in educational institutions to the persons belonging to backward classes in the State of Haryana. Section 5 of the 2016 Act provides that no persons belonging to ‘creamy layer’ amongst the 4 | P a g e backward classes shall be considered for admission in educational institutions against the seats reserved for backward classes. They shall also not be entitled to claim reservation for appointment in services under the State against posts reserved for backward classes. Section 5(2) of the Act postulates that the Government shall, by notification, after taking into consideration social, economic and such other factors, as deemed appropriate, specify the criteria for exclusion and identification of persons belonging to the backward classes as ‘creamy layer’. 4. In exercise of the powers conferred by the 2016 Act, the State Government issued a notification on 17.08.2016 specifying the criteria for exclusion of ‘creamy layer’ within the backward classes. As per the said notification, children of persons having gross annual income up to Rs. 3 lakh shall first of all get the benefit of reservation in services and admission in educational institutions. The left-out quota shall go to that class of backward classes of citizens who earn more than Rs. 3 lakh but up to Rs. 6 lakh per annum. The sections of backward classes earning above Rs. 6 lakh per annum shall be considered as ‘creamy layer’ under Section 5 of the 2016 Act. 5 | P a g e 5. Students aspiring to be admitted to MBBS course for the academic year 2018-2019 in the quota for backward classes filed writ petitions in the High Court of Punjab and Haryana challenging the notification dated 17.08.2016. The main grievance of the petitioners in the said writ petitions was the sub-classification of backward classes, with preference in reservation given to a particular section of a backward class group. The High Court by its judgement dated 07.08.2018 in CWP No. 15731 of 2018 and connected matters set aside the notification dated 17.08.2016 on the ground that the sub-classification of the backward classes is arbitrary and violative of Article 14 of the Constitution of India. The High Court directed the counselling of students to be held afresh on the basis of the earlier criteria existing prior to the 2016 Act. The State of Haryana questioned the correctness of the judgement of the High Court before this Court in SLP(C) No. 21893 of 2018. The request made by the State to stay the judgement of the High Court dated 07.08.2018 was declined by this Court on 28.08.2018. 6. On the same day, the State Government issued a notification after obtaining an opinion of the Advocate General of Haryana, whereby the criteria for computing annual income for the purposes of the notification dated 6 | P a g e 17.08.2016 was fixed as ‘gross annual income’, which shall include income from all sources. By the said notification dated 28.08.2018, all previous notifications and instructions which provided for a different mode of computing annual income stood overruled. Students, who having qualified in NEET-2018 and seeking admission to MBBS and BDS courses in the backward classes quota, filed CWP No. 22055 of 2018 in the High Court, assailing the legality and validity of the notifications dated 17.08.2016 and 28.08.2018. The High Court upheld both the notifications, aggrieved by which, SLP (C) Nos. 32168-32169 of 2018 have been filed before this Court. As the question arising in the Writ Petition (C) No. 60 of 2019 and the appeals arising from SLP (C) No. 21893 of 2018 and SLP (C) Nos. 32168-32169 of 2018 are common, all of them are disposed of together by this judgement. 7. The point considered by the High Court in CWP No. 15731 of 2018 was restricted to the sub-classification of a backward class group, while fixing the criteria for ‘creamy layer’. By the notification dated 17.08.2016, apart from fixing the income criterion as Rs. 6 lakh for identifying and excluding the ‘creamy layer’, the State Government divided the remaining backward classes of citizens, eligible for reservation, into two groups on the basis of their annual 7 | P a g e income. The first group is of those persons who have gross annual income up to Rs. 3 lakh and the other, comprising persons who have income between Rs. 3 lakh and Rs. 6 lakh. According to the notification dated 17.08.2016, children of persons having gross annual income up to Rs. 3 lakh shall first be considered for the benefit of reservation in services and admission in educational institutions. The left-over quota shall then be filled up by the children of those whose annual income is between Rs. 3 lakh and Rs. 6 lakh. The contention on behalf of the State Government, that such division was made to ensure that the benefit of reservation reached the most marginalised amongst the backward classes, was rejected by the High Court. The High Court was of the opinion that this sub-classification is arbitrary and would result in depriving the benefit of reservation to persons belonging to backward classes who have income between Rs. 3 lakh to Rs. 6 lakh. After examining the material produced by the Government, the High Court criticised the State Backward Classes Commission for not examining and validating data to establish social backwardness of the backward classes. By making it clear that fixing Rs. 6 lakh as the income for determining the ‘creamy layer’ amongst the backward classes was not in question before it, the High Court in its 8 | P a g e judgement dated 07.08.2018 concluded that the subclassification giving preference to those with annual income less than Rs. 3 lakh is arbitrary. 8. In its judgement dated 31.08.2018 in CWP No. 22055 of 2018, the High Court upheld the fixation of the income limit of Rs. 6 lakh per year as criteria for determining ‘creamy layer’ amongst the backward classes. After clarifying that the earlier notifications issued by the State Government on 07.06.1995, 09.08.2000 and 31.08.2010 had been superseded by the 2016 Act, the High Court was of the opinion that fixing the criteria for ‘creamy layer’ is in the interests of persons belonging to the marginalised sections of backward classes who actually need the benefit of reservation. In so far as the notification dated 28.08.2018 is concerned, the High Court held that the State Government had jurisdiction under the 2016 Act to take into account the gross annual income from all sources for the purpose of arriving at the criteria for determining ‘creamy layer’. As both the notifications dated 17.08.2016 and 28.08.2018 are in the larger interests of those backward classes who require the benefit of reservation, the High Court dismissed the writ petition. 9 | P a g e 9. We have heard Mr. Siddharth Dave, learned Senior Counsel appearing for the Petitioners and Mr. Arun Bhardwaj, learned Senior Counsel appearing for the Respondent-State. The principal contention of the Petitioners is that the notifications dated 17.8.2016 and 28.08.2018 are contrary to the law laid down by this Court in Indra Sawhney-I as economic criterion cannot be the sole criterion for identifying ‘creamy layer’. It was contended on behalf of the Petitioners that the notifications are violative of Section 5 of the 2016 Act, according to which social, economic and other factors are to be taken into account for specifying the criteria for exclusion and identification of persons belonging to the backward classes as ‘creamy layer’. The learned Senior Counsel for the Petitioners submitted that the subclassification of the backward classes on the basis of income by the notification dated 17.08.2016 resulted in precluding one section of backward class of persons, whose annual income was between Rs. 3 lakh to Rs. 6 lakh, from the benefit of reservation. Computation of gross income by including income from all sources according to the notification dated 28.08.2018 is contrary to the notifications issued by the Government of India as well as the notifications that were issued by the State Government prior to the 2016 10 | P a g e Act. According to the Petitioners, clubbing of salary income and agricultural income to compute the gross income results in exclusion of a large number of eligible sections of backward classes from seeking reservation in appointment to public services and admission to educational institutions. 10. The submissions made on behalf of the Petitioners were countered by the learned Senior Counsel appearing for the State who submitted that the notifications have been issued strictly in accordance with the judgement in Indra Sawhney-I. On behalf of the State, it was contended that a detailed district-wise survey was done by the Commission to collect information relating to social and economic backwardness of all the backward classes before issuing the impugned notifications. Much stress was laid by the State on the laudable object that is achieved by the two notifications in question. The sub-classification amongst the backward classes is to ensure that people with lower income amongst backward classes get the benefit of reservation as they need a helping hand more than the others who fall within the higher income bracket of Rs. 3 lakh to Rs. 6 lakh. The notification dated 28.08.2018 is also for the purpose of providing the benefit of reservation to the marginalised sections of backward classes as such of those sections 11 | P a g e having a higher income should not get primacy and occupy the majority of the reserved seats / posts. 11. The notification dated 17.08.2016 was issued in exercise of the power conferred on the State Government under the 2016 Act. Section 5(2) of the 2016 Act clearly provides that social, economic and other factors have to be taken into account for the purpose of determining and excluding the ‘creamy layer’ within a backward class. It is relevant to mention that the notification that was issued on 07.06.1995 was in tune with the judgement of this Court in Indra Sawhney-I. The said notification excluded certain persons who held constitutional posts and those who were in employment of the State and the Centre in higher posts from the benefit of reservation. In addition, the social advancement of other categories was taken into account for the purpose of including such categories in ‘creamy layer’. Strangely, by the notification dated 17.08.2016, the identification of ‘creamy layer’ amongst backward classes was restricted only to the basis of economic criterion. In clear terms, this Court held in Indra Sawhney-I that the basis of exclusion of ‘creamy layer’ cannot be merely economic. J. Jeevan Reddy in para 792 of the judgement in Indra Sawhney-I held as follows: 12 | P a g e “792. In our opinion, it is not a question of permissibility or desirability of such test but one of proper and more appropriate identification of a class — a backward class. The very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. In a backward class under clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be a compact class. In fact, such exclusion benefits the truly backward. Difficulty, however, really lies in drawing the line — how and where to draw the line? For, while drawing the line, it should be ensured that it does not result in taking away with one hand what is given by the other. The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement. Let us illustrate the point. A member of backward class, say a member of carpenter caste, goes to Middle East and works there as a carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be excluded from the Backward Class? Are his children in India to be deprived of the benefit of Article 16(4)? Situation may, however, be different, if he rises so high economically as to become — say a factory owner himself. In such a situation, his social status also rises. He himself would be in a position to provide employment to others. In such a case, his income is merely a measure of his social status. Even otherwise there 13 | P a g e are several practical difficulties too in imposing an income ceiling. For example, annual income of Rs 36,000 may not count for much in a city like Bombay, Delhi or Calcutta whereas it may be a handsome income in rural India anywhere. The line to be drawn must be a realistic one. Another question would be, should such a line be uniform for the entire country or a given State or should it differ from rural to urban areas and so on. Further, income from agriculture may be difficult to assess and, therefore, in the case of agriculturists, the line may have to be drawn with reference to the extent of holding. While the income of a person can be taken as a measure of his social advancement, the limit to be prescribed should not be such as to result in taking away with one hand what is given with the other. The income limit must be such as to mean and signify social advancement. At the same time, it must be recognised that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status is society (social status) rises; he is no longer socially disadvantaged. His children get full opportunity to realise their potential. They are in no way handicapped in the race of life. His salary is also such that he is above want. It is but logical that in such a situation, his children are not given the benefit of reservation. For by giving them the benefit of reservation, other disadvantaged members of that backward class may be deprived of that benefit. It is then argued for the respondents that ‘one swallow doesn't make the summer’, and that merely because a few members of a caste or class become socially advanced, the class/caste as such does not cease to be backward. It is pointed out that clause (4) of 14 | P a g e Article 16 aims at group backwardness and not individual backwardness. While we agree that clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the ‘class’ a truly backward class and would more appropriately serve the purpose and object of clause (4). (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes).” The following directions were issued in Para 793 of the judgement: “793. Keeping in mind all these considerations, we direct the Government of India to specify the basis of exclusion — whether on the basis of income, extent of holding or otherwise — of ‘creamy layer’. This shall be done as early as possible, but not exceeding four months. On such specification persons falling within the net of exclusionary rule shall cease to be the members of the Other Backward Classes (covered by the expression ‘backward class of citizens’) for the purpose of Article 16(4). The impugned Office Memorandums dated August 13, 1990 and September 25, 1991 shall be implemented subject only to such specification and exclusion of socially advanced persons from the backward classes contemplated by the said O.M. In other words, after the expiry of four months from today, the implementation of the said O.M. shall be subject to the exclusion of the ‘creamy layer’ in accordance with the criteria to be specified by the Government of India and not otherwise.” 12. The implementation of the judgement of this Court in Indra Sawhney-I by identification of ‘creamy layer’ was not 15 | P a g e done promptly by certain states. The State of Kerala neither appointed a Commission nor implemented the directions in the judgement for more than three years, following which contempt proceedings had to be initiated against the State. A High-Level Committee was directed to be constituted by this Court in the State of Kerala for identifying the ‘creamy layer’ among the designated backward classes of the State. This Court in Indra Sawhney v. Union of India 2 (hereinafter referred to as, ‘Indra Sawhney-II’) examined certain questions relating to the recommendations made by the said High-Level Committee. After thoroughly examining the factors which were given emphasis in the various opinions rendered in Indra Sawhney-I for determining ‘creamy layer’ amongst the backward classes, this Court held that persons from backward classes who occupied posts in higher services like IAS, IPS and All India Services had reached a higher level of social advancement and economic status and therefore, were not entitled to be treated as backward. Such persons were to be treated as ‘creamy layer’ without any further inquiry. Likewise, people with sufficient income who were in a position to provide employment to others should also be taken to have reached a higher social status and therefore, 2 (2000) 1 SCC 168 16 | P a g e should be treated as outside the backward class. Similarly, persons from backward classes who had higher agricultural holdings or were receiving income from properties, beyond a prescribed limit, do not deserve the benefit of reservation. The above-mentioned categories were necessarily to be excluded from backward classes. This Court in Indra Sawhney-II held that the exclusion of the above-mentioned categories is a ‘judicial declaration’ made in Indra Sawhney-I. 13. In Ashok Kumar Thakur v. State of Bihar 3 , this Court was concerned with the notifications issued for the identification of ‘creamy layer’ by the States of Bihar and Uttar Pradesh. The Schedule to the memorandum issued by the Government of India on 08.09.1993, pursuant to the judgement of Indra Sawhney-I, laying down the criteria for identifying ‘creamy layer’ was approved as being in conformity with the law laid down in the said judgement. The criteria fixed for identifying ‘creamy layer’ by the States of Uttar Pradesh and Bihar, respectively, were held to be wholly arbitrary and not to be in accordance with the guidelines laid down by this Court in Indra Sawhney-I. Consequently, this Court quashed the respective notifications issued by the 3 (1995) 5 SCC 403 17 | P a g e States of Bihar and Uttar Pradesh and directed the States to follow the criteria laid down by the Government of India in the memorandum dated 08.09.1993 for the academic year 1995-96, with fresh criteria for subsequent years to be framed in accordance with law. 14. In this case, we are concerned with the validity of the notifications dated 17.08.2016 and 28.08.2018 issued by the Government of Haryana. The notification dated 17.08.2016 is in flagrant violation of the directions issued by this Court in Indra Sawhney-I and is at variance with the memorandum dated 08.09.1993 issued by the Union of India. The criteria mentioned for identifying such of those persons who are socially advanced have not been taken into account by the Government of Haryana while issuing the notification dated 17.08.2016. While issuing the notification dated 07.06.1995, the State Government had followed the criteria laid out in the memorandum issued by the Union of India on 08.09.1993, which was in tune with the directions given by this Court in Indra Sawhney-I. In spite of Section 5(2) of the 2016 Act making it mandatory for identification and exclusion of ‘creamy layer’ to be on the basis of social, economic and other relevant factors, the State of Haryana has sought to determine 'creamy layer’ from backward 18 | P a g e classes solely on the basis of economic criterion and has committed a grave error in doing so. On this ground alone, the notification dated 17.08.2016 requires to be set aside. Therefore, we quash the notification dated 17.08.2016, giving liberty to the State Government to issue a fresh notification within a period of 3 months from today after taking into account the principles laid down by this Court in Indra Sawhney-I and the criteria mentioned in Section 5(2) of the 2016 Act for determining ‘creamy layer’. 15. As we have struck down the notification dated 17.08.2016 in toto, there is no need for adjudicating the validity of the notification dated 28.08.2018, which is solely dependent on the notification dated 17.08.2016. Admissions to educational institutions and appointment to state services on the basis of the notifications dated 17.08.2016 and 28.08.2018 shall not be disturbed. 16. The Writ Petition and the Appeals arising from the Special Leave Petitions are disposed of accordingly. .....................................J. [ L. NAGESWARA RAO ] .....................................J. [ ANIRUDDHA BOSE ] New Delhi, August 24, 2021. 19 | P a g e

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL/APPELLATE JURISDICTION

Writ Petition (Civil) No. 60 of 2019

PICHRA WARG KALYAN MAHASABHA

HARYANA (Regd.) & ANR. .... Petitioners

Versus

THE STATE OF HARYANA & ANR. ….Respondents

With

Civil Appeal No.4952 of 2021

 (Arising out of SLP (C) No. 21893 of 2018)

Civil Appeal Nos.4953-4954 of 2021

(Arising out of SLP(C) Nos. 32168-32169 of 2018

J U D G E M E N T

L. NAGESWARA RAO, J.

Leave granted in SLP (C) No.21893 of 2018 & SLP (C)

Nos.32168-32169 of 2018.

1. Writ Petition (C) No. 60 of 2019 has been filed under

Article 32 of the Constitution of India for quashing

notifications dated 17.08.2016 and 28.08.2018 issued by the

First Respondent as arbitrary and violative of Articles 14, 15

and 16 of the Constitution of India. A further direction is

1 | P a g e

sought for a fresh survey and verification of data for

identification and specification of ‘creamy layer’ as per the

provisions of the Haryana Backward Classes (Reservation in

Services and Admission in Educational Institutions) Act, 2016

(hereinafter referred to as, the ‘2016 Act’). The Petitioners

have also sought for a direction to the Respondents to

provide reservation to backward classes in Haryana under

the 2016 Act by considering the existing defined criteria of

‘creamy layer’ by the National Commission for Backward

Classes or the criteria used by the State of Haryana prior to

the 2016 Act.

2. Reservation in backward classes as recommended by

the Mandal Commission was scrutinised by this Court in

Indra Sawhney v. Union of India

1

 (hereinafter referred to

as, ‘Indra Sawhney-I’). In the said judgement, this Court

recommended constitution of a permanent body at the

Central level and at the level of the States to deal with the

inclusion, under-inclusion and over-inclusion of groups in the

lists of other backward classes of citizens. This Court

directed State Governments to identify ‘creamy layer’

amongst the backward classes and exclude them from the

purview of reservation. Pursuant to the directions issued in

1 1992 Supp (3) SCC 217

2 | P a g e

Indra Sawhney-I, the Haryana Second Backward Classes

Commission was constituted on 12.10.1993. The said

Commission was assigned the function of specifying the basis

for excluding socially advanced persons / creamy layer from

the backward classes. On 16.05.1995, the Haryana Second

Backward Classes Commission submitted its report

recommending the criteria for excluding socially advanced

persons/sections (creamy layer) from the backward classes.

The State Government accepted the recommendations of the

Commission and decided that the benefit of reservation shall

not extend to persons/sections mentioned in Annexure ‘A’ to

the circular dated 07.06.1995 issued by the Commissioner

and Secretary to Government of Haryana, Welfare and

Scheduled Castes and Backward Classes Department. The

said Annexure ‘A’ included the children of those who held

Constitutional Posts, who were Class I Officers of the All India

Central and State Services (Direct Recruits), Class II Officers

of the Central and State Services (Direct Recruits),

employees in Public Sector Undertakings etc., and personnel

belonging to Armed Forces including Para Military Forces

(excluding persons holding civil posts). Children of persons

belonging to a family which owned more than the permissible

land under the statute of Haryana pertaining to ceiling on

3 | P a g e

land holdings were also covered under Annexure ‘A’. Another

category specified in Annexure ‘A’ was with respect to the

children of persons with gross annual income of Rs. 1 lakh or

above or possessing wealth above the exemption limit as

prescribed in the Wealth Tax Act, 1957 for a period of three

consecutive years. Lastly, Annexure ‘A’ brought within its fold

children of persons of all other listed categories who were not

disentitled to the benefit of reservation but had income from

other sources of wealth bringing them within the

aforementioned income / wealth criteria.

3. On 31.08.2010, the Financial Commissioner and

Principal Secretary to Government of Haryana, Welfare of

Scheduled Castes & Backward Classes Department informed

the relevant authorities that the State Government had

decided to raise income limit to Rs. 4.5 lakh for determining

‘creamy layer’ amongst the backward classes under the

income / wealth criteria. Later, the Haryana Backward

Classes (Reservation in Services and Admission in

Educational Institutions) Act, 2016 was enacted to provide for

reservation in services and admission in educational

institutions to the persons belonging to backward classes in

the State of Haryana. Section 5 of the 2016 Act provides that

no persons belonging to ‘creamy layer’ amongst the

4 | P a g e

backward classes shall be considered for admission in

educational institutions against the seats reserved for

backward classes. They shall also not be entitled to claim

reservation for appointment in services under the State

against posts reserved for backward classes. Section 5(2) of

the Act postulates that the Government shall, by notification,

after taking into consideration social, economic and such

other factors, as deemed appropriate, specify the criteria for

exclusion and identification of persons belonging to the

backward classes as ‘creamy layer’.

4. In exercise of the powers conferred by the 2016 Act, the

State Government issued a notification on 17.08.2016

specifying the criteria for exclusion of ‘creamy layer’ within

the backward classes. As per the said notification, children of

persons having gross annual income up to Rs. 3 lakh shall

first of all get the benefit of reservation in services and

admission in educational institutions. The left-out quota shall

go to that class of backward classes of citizens who earn

more than Rs. 3 lakh but up to Rs. 6 lakh per annum. The

sections of backward classes earning above Rs. 6 lakh per

annum shall be considered as ‘creamy layer’ under Section 5

of the 2016 Act.

5 | P a g e

5. Students aspiring to be admitted to MBBS course for

the academic year 2018-2019 in the quota for backward

classes filed writ petitions in the High Court of Punjab and

Haryana challenging the notification dated 17.08.2016. The

main grievance of the petitioners in the said writ petitions

was the sub-classification of backward classes, with

preference in reservation given to a particular section of a

backward class group. The High Court by its judgement dated

07.08.2018 in CWP No. 15731 of 2018 and connected

matters set aside the notification dated 17.08.2016 on the

ground that the sub-classification of the backward classes is

arbitrary and violative of Article 14 of the Constitution of

India. The High Court directed the counselling of students to

be held afresh on the basis of the earlier criteria existing

prior to the 2016 Act. The State of Haryana questioned the

correctness of the judgement of the High Court before this

Court in SLP(C) No. 21893 of 2018. The request made by the

State to stay the judgement of the High Court dated

07.08.2018 was declined by this Court on 28.08.2018.

6. On the same day, the State Government issued a

notification after obtaining an opinion of the Advocate

General of Haryana, whereby the criteria for computing

annual income for the purposes of the notification dated

6 | P a g e

17.08.2016 was fixed as ‘gross annual income’, which shall

include income from all sources. By the said notification

dated 28.08.2018, all previous notifications and instructions

which provided for a different mode of computing annual

income stood overruled. Students, who having qualified in

NEET-2018 and seeking admission to MBBS and BDS courses

in the backward classes quota, filed CWP No. 22055 of 2018

in the High Court, assailing the legality and validity of the

notifications dated 17.08.2016 and 28.08.2018. The High

Court upheld both the notifications, aggrieved by which, SLP

(C) Nos. 32168-32169 of 2018 have been filed before this

Court. As the question arising in the Writ Petition (C) No. 60

of 2019 and the appeals arising from SLP (C) No. 21893 of

2018 and SLP (C) Nos. 32168-32169 of 2018 are common, all

of them are disposed of together by this judgement.

7. The point considered by the High Court in CWP No.

15731 of 2018 was restricted to the sub-classification of a

backward class group, while fixing the criteria for ‘creamy

layer’. By the notification dated 17.08.2016, apart from fixing

the income criterion as Rs. 6 lakh for identifying and

excluding the ‘creamy layer’, the State Government divided

the remaining backward classes of citizens, eligible for

reservation, into two groups on the basis of their annual

7 | P a g e

income. The first group is of those persons who have gross

annual income up to Rs. 3 lakh and the other, comprising

persons who have income between Rs. 3 lakh and Rs. 6 lakh.

According to the notification dated 17.08.2016, children of

persons having gross annual income up to Rs. 3 lakh shall

first be considered for the benefit of reservation in services

and admission in educational institutions. The left-over quota

shall then be filled up by the children of those whose annual

income is between Rs. 3 lakh and Rs. 6 lakh. The contention

on behalf of the State Government, that such division was

made to ensure that the benefit of reservation reached the

most marginalised amongst the backward classes, was

rejected by the High Court. The High Court was of the opinion

that this sub-classification is arbitrary and would result in

depriving the benefit of reservation to persons belonging to

backward classes who have income between Rs. 3 lakh to Rs.

6 lakh. After examining the material produced by the

Government, the High Court criticised the State Backward

Classes Commission for not examining and validating data to

establish social backwardness of the backward classes. By

making it clear that fixing Rs. 6 lakh as the income for

determining the ‘creamy layer’ amongst the backward

classes was not in question before it, the High Court in its

8 | P a g e

judgement dated 07.08.2018 concluded that the subclassification giving preference to those with annual income

less than Rs. 3 lakh is arbitrary.

8. In its judgement dated 31.08.2018 in CWP No. 22055

of 2018, the High Court upheld the fixation of the income

limit of Rs. 6 lakh per year as criteria for determining ‘creamy

layer’ amongst the backward classes. After clarifying that

the earlier notifications issued by the State Government on

07.06.1995, 09.08.2000 and 31.08.2010 had been

superseded by the 2016 Act, the High Court was of the

opinion that fixing the criteria for ‘creamy layer’ is in the

interests of persons belonging to the marginalised sections of

backward classes who actually need the benefit of

reservation. In so far as the notification dated 28.08.2018 is

concerned, the High Court held that the State Government

had jurisdiction under the 2016 Act to take into account the

gross annual income from all sources for the purpose of

arriving at the criteria for determining ‘creamy layer’. As

both the notifications dated 17.08.2016 and 28.08.2018 are

in the larger interests of those backward classes who require

the benefit of reservation, the High Court dismissed the writ

petition.

9 | P a g e

9. We have heard Mr. Siddharth Dave, learned Senior

Counsel appearing for the Petitioners and Mr. Arun Bhardwaj,

learned Senior Counsel appearing for the Respondent-State.

The principal contention of the Petitioners is that the

notifications dated 17.8.2016 and 28.08.2018 are contrary to

the law laid down by this Court in Indra Sawhney-I as

economic criterion cannot be the sole criterion for identifying

‘creamy layer’. It was contended on behalf of the Petitioners

that the notifications are violative of Section 5 of the 2016

Act, according to which social, economic and other factors

are to be taken into account for specifying the criteria for

exclusion and identification of persons belonging to the

backward classes as ‘creamy layer’. The learned Senior

Counsel for the Petitioners submitted that the subclassification of the backward classes on the basis of income

by the notification dated 17.08.2016 resulted in precluding

one section of backward class of persons, whose annual

income was between Rs. 3 lakh to Rs. 6 lakh, from the

benefit of reservation. Computation of gross income by

including income from all sources according to the

notification dated 28.08.2018 is contrary to the notifications

issued by the Government of India as well as the notifications

that were issued by the State Government prior to the 2016

10 | P a g e

Act. According to the Petitioners, clubbing of salary income

and agricultural income to compute the gross income results

in exclusion of a large number of eligible sections of

backward classes from seeking reservation in appointment to

public services and admission to educational institutions.

10. The submissions made on behalf of the Petitioners were

countered by the learned Senior Counsel appearing for the

State who submitted that the notifications have been issued

strictly in accordance with the judgement in Indra

Sawhney-I. On behalf of the State, it was contended that a

detailed district-wise survey was done by the Commission to

collect information relating to social and economic

backwardness of all the backward classes before issuing the

impugned notifications. Much stress was laid by the State on

the laudable object that is achieved by the two notifications

in question. The sub-classification amongst the backward

classes is to ensure that people with lower income amongst

backward classes get the benefit of reservation as they need

a helping hand more than the others who fall within the

higher income bracket of Rs. 3 lakh to Rs. 6 lakh. The

notification dated 28.08.2018 is also for the purpose of

providing the benefit of reservation to the marginalised

sections of backward classes as such of those sections

11 | P a g e

having a higher income should not get primacy and occupy

the majority of the reserved seats / posts.

11. The notification dated 17.08.2016 was issued in

exercise of the power conferred on the State Government

under the 2016 Act. Section 5(2) of the 2016 Act clearly

provides that social, economic and other factors have to be

taken into account for the purpose of determining and

excluding the ‘creamy layer’ within a backward class. It is

relevant to mention that the notification that was issued on

07.06.1995 was in tune with the judgement of this Court in

Indra Sawhney-I. The said notification excluded certain

persons who held constitutional posts and those who were in

employment of the State and the Centre in higher posts from

the benefit of reservation. In addition, the social

advancement of other categories was taken into account for

the purpose of including such categories in ‘creamy layer’.

Strangely, by the notification dated 17.08.2016, the

identification of ‘creamy layer’ amongst backward classes

was restricted only to the basis of economic criterion. In clear

terms, this Court held in Indra Sawhney-I that the basis of

exclusion of ‘creamy layer’ cannot be merely economic. J.

Jeevan Reddy in para 792 of the judgement in Indra

Sawhney-I held as follows:

12 | P a g e

“792. In our opinion, it is not a question of permissibility or

desirability of such test but one of proper and more

appropriate identification of a class — a backward class. The

very concept of a class denotes a number of persons having

certain common traits which distinguish them from the

others. In a backward class under clause (4) of Article 16, if

the connecting link is the social backwardness, it should

broadly be the same in a given class. If some of the

members are far too advanced socially (which in the

context, necessarily means economically and, may also

mean educationally) the connecting thread between them

and the remaining class snaps. They would be misfits in the

class. After excluding them alone, would the class be a

compact class. In fact, such exclusion benefits the truly

backward. Difficulty, however, really lies in drawing the line

— how and where to draw the line? For, while drawing the

line, it should be ensured that it does not result in taking

away with one hand what is given by the other. The basis of

exclusion should not merely be economic, unless, of course,

the economic advancement is so high that it necessarily

means social advancement. Let us illustrate the point. A

member of backward class, say a member of carpenter

caste, goes to Middle East and works there as a carpenter. If

you take his annual income in rupees, it would be fairly high

from the Indian standard. Is he to be excluded from the

Backward Class? Are his children in India to be deprived of

the benefit of Article 16(4)? Situation may, however, be

different, if he rises so high economically as to become —

say a factory owner himself. In such a situation, his social

status also rises. He himself would be in a position to

provide employment to others. In such a case, his income is

merely a measure of his social status. Even otherwise there

13 | P a g e

are several practical difficulties too in imposing an income

ceiling. For example, annual income of Rs 36,000 may not

count for much in a city like Bombay, Delhi or Calcutta

whereas it may be a handsome income in rural India

anywhere. The line to be drawn must be a realistic one.

Another question would be, should such a line be uniform for

the entire country or a given State or should it differ from

rural to urban areas and so on. Further, income from

agriculture may be difficult to assess and, therefore, in the

case of agriculturists, the line may have to be drawn with

reference to the extent of holding. While the income of a

person can be taken as a measure of his social

advancement, the limit to be prescribed should not be such

as to result in taking away with one hand what is given with

the other. The income limit must be such as to mean and

signify social advancement. At the same time, it must be

recognised that there are certain positions, the occupants of

which can be treated as socially advanced without any

further enquiry. For example, if a member of a designated

backward class becomes a member of IAS or IPS or any

other All India Service, his status is society (social status)

rises; he is no longer socially disadvantaged. His children

get full opportunity to realise their potential. They are in no

way handicapped in the race of life. His salary is also such

that he is above want. It is but logical that in such a

situation, his children are not given the benefit of

reservation. For by giving them the benefit of reservation,

other disadvantaged members of that backward class may

be deprived of that benefit. It is then argued for the

respondents that ‘one swallow doesn't make the summer’,

and that merely because a few members of a caste or class

become socially advanced, the class/caste as such does not

cease to be backward. It is pointed out that clause (4) of

14 | P a g e

Article 16 aims at group backwardness and not individual

backwardness. While we agree that clause (4) aims at group

backwardness, we feel that exclusion of such socially

advanced members will make the ‘class’ a truly backward

class and would more appropriately serve the purpose and

object of clause (4). (This discussion is confined to Other

Backward Classes only and has no relevance in the case of

Scheduled Tribes and Scheduled Castes).”

The following directions were issued in Para 793 of the

judgement:

“793. Keeping in mind all these considerations, we direct

the Government of India to specify the basis of exclusion —

whether on the basis of income, extent of holding or

otherwise — of ‘creamy layer’. This shall be done as early as

possible, but not exceeding four months. On such

specification persons falling within the net of exclusionary

rule shall cease to be the members of the Other Backward

Classes (covered by the expression ‘backward class of

citizens’) for the purpose of Article 16(4). The impugned

Office Memorandums dated August 13, 1990 and September

25, 1991 shall be implemented subject only to such

specification and exclusion of socially advanced persons

from the backward classes contemplated by the said O.M. In

other words, after the expiry of four months from today, the

implementation of the said O.M. shall be subject to the

exclusion of the ‘creamy layer’ in accordance with the

criteria to be specified by the Government of India and not

otherwise.”

12. The implementation of the judgement of this Court in

Indra Sawhney-I by identification of ‘creamy layer’ was not

15 | P a g e

done promptly by certain states. The State of Kerala neither

appointed a Commission nor implemented the directions in

the judgement for more than three years, following which

contempt proceedings had to be initiated against the State. A

High-Level Committee was directed to be constituted by this

Court in the State of Kerala for identifying the ‘creamy layer’

among the designated backward classes of the State. This

Court in Indra Sawhney v. Union of India

2

 (hereinafter

referred to as, ‘Indra Sawhney-II’) examined certain

questions relating to the recommendations made by the said

High-Level Committee. After thoroughly examining the

factors which were given emphasis in the various opinions

rendered in Indra Sawhney-I for determining ‘creamy layer’

amongst the backward classes, this Court held that persons

from backward classes who occupied posts in higher services

like IAS, IPS and All India Services had reached a higher level

of social advancement and economic status and therefore,

were not entitled to be treated as backward. Such persons

were to be treated as ‘creamy layer’ without any further

inquiry. Likewise, people with sufficient income who were in a

position to provide employment to others should also be

taken to have reached a higher social status and therefore,

2 (2000) 1 SCC 168

16 | P a g e

should be treated as outside the backward class. Similarly,

persons from backward classes who had higher agricultural

holdings or were receiving income from properties, beyond a

prescribed limit, do not deserve the benefit of reservation.

The above-mentioned categories were necessarily to be

excluded from backward classes. This Court in Indra

Sawhney-II held that the exclusion of the above-mentioned

categories is a ‘judicial declaration’ made in Indra

Sawhney-I.

13. In Ashok Kumar Thakur v. State of Bihar

3

, this

Court was concerned with the notifications issued for the

identification of ‘creamy layer’ by the States of Bihar and

Uttar Pradesh. The Schedule to the memorandum issued by

the Government of India on 08.09.1993, pursuant to the

judgement of Indra Sawhney-I, laying down the criteria for

identifying ‘creamy layer’ was approved as being in

conformity with the law laid down in the said judgement. The

criteria fixed for identifying ‘creamy layer’ by the States of

Uttar Pradesh and Bihar, respectively, were held to be wholly

arbitrary and not to be in accordance with the guidelines laid

down by this Court in Indra Sawhney-I. Consequently, this

Court quashed the respective notifications issued by the

3 (1995) 5 SCC 403

17 | P a g e

States of Bihar and Uttar Pradesh and directed the States to

follow the criteria laid down by the Government of India in

the memorandum dated 08.09.1993 for the academic year

1995-96, with fresh criteria for subsequent years to be

framed in accordance with law.

14. In this case, we are concerned with the validity of the

notifications dated 17.08.2016 and 28.08.2018 issued by the

Government of Haryana. The notification dated 17.08.2016

is in flagrant violation of the directions issued by this Court in

Indra Sawhney-I and is at variance with the memorandum

dated 08.09.1993 issued by the Union of India. The criteria

mentioned for identifying such of those persons who are

socially advanced have not been taken into account by the

Government of Haryana while issuing the notification dated

17.08.2016. While issuing the notification dated

07.06.1995, the State Government had followed the criteria

laid out in the memorandum issued by the Union of India on

08.09.1993, which was in tune with the directions given by

this Court in Indra Sawhney-I. In spite of Section 5(2) of

the 2016 Act making it mandatory for identification and

exclusion of ‘creamy layer’ to be on the basis of social,

economic and other relevant factors, the State of Haryana

has sought to determine 'creamy layer’ from backward

18 | P a g e

classes solely on the basis of economic criterion and has

committed a grave error in doing so. On this ground alone,

the notification dated 17.08.2016 requires to be set aside.

Therefore, we quash the notification dated 17.08.2016,

giving liberty to the State Government to issue a fresh

notification within a period of 3 months from today after

taking into account the principles laid down by this Court in

Indra Sawhney-I and the criteria mentioned in Section 5(2)

of the 2016 Act for determining ‘creamy layer’.

15. As we have struck down the notification dated

17.08.2016 in toto, there is no need for adjudicating the

validity of the notification dated 28.08.2018, which is solely

dependent on the notification dated 17.08.2016. Admissions

to educational institutions and appointment to state services

on the basis of the notifications dated 17.08.2016 and

28.08.2018 shall not be disturbed.

16. The Writ Petition and the Appeals arising from the

Special Leave Petitions are disposed of accordingly.

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

 [ L. NAGESWARA RAO ]

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

 [ ANIRUDDHA BOSE ]

New Delhi,

August 24, 2021.

19 | P a g e

It is upon such exhortation that accused-Pardeep had gone inside, collected the firearm and reached the rooftop; and while he was there at the rooftop, the crucial exhortation came from the accused-Sandeep. Thus, all three accused are said to have exhorted accused-Pardeep but the exhortation given by accused-Sandeep was immediately before the shot was fired and of a greater impact in as much as he had seen accused-Pardeep at the rooftop along with the firearm and then made the exhortation. Considering the entirety of the circumstances, in our view, accused Ishwar and accused Krishana Devi are entitled to benefit of doubt whereas the involvement of accused Sandeep stands completely proved beyond reasonable doubt.

It was observed that the common intention stood proved from the fact that accused Ishwar, Krishana Devi and Sandeep had exhorted accused-Pardeep and, on their instigation, accused-Pardeep went to the roof of the house, armed with Pistol and fired at the deceased. 

We now come to the role played by the other accused in the transaction. 

The role ascribed to Ishwar and Krishana, the parents of accused-Pardeep was of initial exhortation. 

The parents were stated to have exhorted the sons; accused-Pardeep and accused-Sandeep to teach a lesson to the deceased-Surender. 

It is upon such exhortation that accused-Pardeep had gone inside, collected the firearm and reached the rooftop; and while he was there at the rooftop, the crucial exhortation came from the accused-Sandeep.  Thus, all three accused are said to have exhorted accused-Pardeep 

but the exhortation given by accused-Sandeep was immediately before the shot was fired and of a greater impact in as much as he had seen accused-Pardeep at the rooftop along with the firearm and then made the exhortation.  

Considering the entirety of the circumstances, in our view, accused Ishwar and accused Krishana Devi are entitled to benefit of doubt whereas the involvement of accused Sandeep stands completely proved beyond reasonable doubt. 

while Criminal Appeal No.1615 of 2018 preferred by accused Ishwar and Criminal Appeal arising out of Special Leave Petition (Crl.) No.8789 of 2014 preferred by Krishana Devi are allowed. 

The accused Ishwar and Krishana Devi be released forthwith unless their custody is required in connection with any other offence. 

1

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1613 OF 2018

SANDEEP ...APPELLANT

VERSUS

STATE OF HARYANA …RESPONDENT

WITH

CRIMINAL APPEAL NO.1614 OF 2018

CRIMINAL APPEAL NO.1615 OF 2018

AND

CRIMINAL APPEAL NO. OF 2021

[Arising out of Review Petition (Crl.) No.______of 2021 (D.No.6662 of 2020)]

(Arising out of Special Leave Petition (Crl.) No.8789 of 2014)

J U D G M E N T

UDAY UMESH LALIT, J.

1. Delay in filing Review Petition (Crl.) Diary No. 6662 of 2020 in

Special Leave Petition (Crl.) No.8789 of 2014 is condoned. The Review

Petition is allowed and the order dated 15.12.2014 passed by this Court

dismissing Special Leave Petition (Crl.) No.8789 of 2014 is recalled. The

Special Leave Petition is restored to the file of this Court. Leave granted.

2

2. These appeals arise out of the common judgment and order dated

30.05.2014 passed by the High Court of Punjab and Haryana at

Chandigarh dismissing Criminal Appeal No.D-372-DB of 2009 and

thereby affirming the conviction and sentence of all the appellants in

respect of the offences punishable under Section 302 read with Section

34 of the Indian Penal Code, 1860 (for short, “the IPC”) and under Section

25 of the Arms Act, 1959 qua Appellant-Pardeep.

3. The appellants namely; (i) Pardeep son of Sh. Ishwar Singh, (ii)

Ishwar Singh son of Sh. Ram Singh, (iii) Sandeep son of Sh. Ishwar Singh

and (iv) Krishana wife of Sh. Ishwar Singh, R/o Vill. Lehrara, Distt.

Sonepat were tried in the Court of Additional Sessions Judge/ Fast Track

Court, Sonepat, Haryana in Sessions Case No.14-RBT of 2007-2008 for

having committed the aforementioned offences.

4. The crime was registered pursuant to First Information Report

No.62 of 2007 lodged with Police Station Sadar, Sonepat at about 1.30

pm on 13.4.2007. The information given by Rajbir Singh son of Sia Ram

who was later examined as PW-1 in the trial, was to the following effect:

"…. The residences of mine and that of Ishwar s/o Ram Singh

are adjacent to each other. Ishwar is the son of my uncle

(Tau). Behind our houses there is a common street, which

had been tried to be encroached many times by Ishwar's

family. Last time said street was unblocked with the

intervention of the previous panchayat. Four days earlier, my 

3

sister is law (Bhabhi) and Ramesh Kumar got replaced the

karies of their old house, waste material of which was kept

back side in the street. Owing to keeping of this material in

the street, there was altercation between the two families,

since Ishwar was pressing for picking up the material at once.

Today on date 13.4.07 at about 7.15 AM Ishwar and Pardeep,

Sandeep s/o Ishwar and Krishana w/o Ishwar r/o same village

started abusing my sister in law Kaushalya. I, my mother

Harkaur, my brother Surinder and his wife Preeti tried to

console them that why they are abusing Kaushalya. Labours

have been called at 8.00 AM. We would then remove the

material, but on hearing so, they then were shouted and

Ishwar and his wife Krishana told their sons Pardeep and

Sandeep to teach a lesson for quarrelling with us and for

putting material in the street and to shoot them. On saying

so, Pardeep stood at his room with weapon. Then Sandeep

told to shoot them. Pardeep fired a shoot with his weapon to

Surender, which hit Surender at the left side of his head, with

that fire Surender fell down there and succumbed at the spot.

I took him to Government Hospital in my vehicle of my

brother, where the doctors declared him dead and dead body

was house in mortuary…..”

5. The post mortem was conducted on the body of the deceased –

Surender by Dr. S.P. Sharma, M.O., Civil Hospital, Sonepat (later

examined as PW-5 in the trial) who found the following ante-mortem

injuries:

“i. A penetrating lacerated wound over left temporal

areas of the skull of size 2.5 cm x 1.5 cm with inverted with a

collar of abrasion at its upper part and going posteronedialy

and downwards to right occipto parital area (on Probing)

oozing blood. On dissection the tract was penetrating through

the left temporal bone, brain covering i.e. dura and brain

matter up to the right occupatable lobe. The cranial cavity

was full of semi clotted blood. A metallic bullet was lying in

the right occipital lobe of brain with deformed shape. Bullet

was removed and sealed in a glass vial bearing two seals.

4

ii. Blood was coming out of mouth and both nostrils.

Rest of the organs are healthy and pale.”

6. After arrest, the statement of the accused – Pardeep led to the

recovery of the firearm. Said firearm and the projectile recovered from

the body of the deceased, among other things, were sent for analysis to

the Forensic Science Laboratory, Madhuban, Karnal, Haryana. The

relevant portion of the report which was placed on record in view of

Section 293 of the Code of Criminal Procedure, 1973 and exhibited in the

trial was to the following effect:

“RESULT

1. The country-made pistol marked W/1 (chambered for .315"

cartridges) is defined in Arms Act 54 of 1959. Its firing

mechanism was found in working order.

2. The .315" fired bullet marked BC/1 has been fired from

country-made pistol marked and not from any other firearm

even of same make and bore, because every firearm has got

its own individual characteristic marks."

7. The prosecution examined 14 witnesses in support of its case.

PW-1, Rajbir Singh son of Sia Ram, PW-2 Kaushalya wife of Ramesh

Kumar, (Sister-in-Law of the deceased), and PW-3, Preeti wife of Late

Surender (widow of the deceased) were examined as eye-witnesses to the

occurrence. Their version was identical to that stated in the First

Information Report and nothing substantial could be drawn by the

Defence from their cross-examinations. It was, however, projected by the 

5

Defence that accused-Pardeep had taken the deceased to the hospital for

medical attention and that his name figured in the Post Mortem Report

as well as in the Inquest Report.

8. Accepting the case of the prosecution, the Trial Court by its

judgment order dated 18.03.2009 found all the accused guilty of the

offences with which they were charged. It was observed that the common

intention stood proved from the fact that accused Ishwar, Krishana Devi

and Sandeep had exhorted accused-Pardeep and, on their instigation,

accused-Pardeep went to the roof of the house, armed with Pistol and

fired at the deceased.

9. The Trial Court, thus, convicted and sentenced all the accused to

suffer life imprisonment for having committed offences under Sections

302 read with 34 IPC and imposed fine in the sum of Rs.5,000/- each

with default sentence of six months. Accused-Pardeep was separately

convicted under Section 25 of the Arms Act, 1959 and was awarded

sentence of one year with the imposition of fine with a sum of Rs.500/-

with a default sentence of 10 days.

10. All the accused filed a common appeal being Criminal Appeal No.D372-DB of 2009, which was dismissed by the High Court vide its

judgment and order dated 30.05.2014. While confirming the view taken 

6

by the Trial Court, the High Court dealt with the issue whether Pardeep

was present during the Inquest Proceedings and how his name had

appeared in the Post Mortem Report. Paragraph 30 of the judgment dealt

with these issues and finally, it was found by the High Court that the

presence of Pardeep in the Government Hospital, Sonepat was not at all

established and the defence taken by him stood falsified.

11. Krishana Devi being aggrieved by the order of conviction and

sentence approached this Court by filing Special Leave Petition (Crl.)

No.8789 of 2014, which was dismissed by this Court vide order dated

15.12.2014 as stated above.

12. Thereafter, the petitions preferred by the co-accused namely;

Sandeep, Pardeep, and Ishwar came up and this Court was pleased to

grant Special Leave to Appeal.

13. The Review Petition filed by Krishana Devi against the dismissal of

her Special Leave Petition was then ordered to be heard along with the

appeals preferred by co-accused.

14. In these circumstances, all four appeals are being considered by

us.

7

15. Mr. B. Adinarayan Rao and Mr. Siddhartha Dave, learned Senior

Advocates appearing for the appellants submitted:

(A) All the eyewitnesses came out with a parrot-like version and

considering the enmity between two sides, their version could not have

been relied upon.

(B) The presence of accused Pardeep at the Hospital was established

through the Inquest Report and the Post Mortem Report.

(C) It would be impossible to believe that if Pardeep was the assailant,

he would have taken the deceased for medical attention.

(D) The disclosure statement of accused-Pardeep as well as all the

relevant documents were attested by PWs 1, 2, and 3 and no independent

witness was associated with the recording of any such statement or

recoveries.

16. Mr. Deepak Thukral, learned Deputy Advocate General appearing

for the State submitted:

(A) The First Information Report was lodged within few hours of the

incident.

(B) The reasoning given by the High Court while rejecting the

submission about the presence of accused Pardeep was sound and

correct and did not call for any interference.

8

(C) The earliest version given by the witnesses was corroborated by the

medical evidence.

(D) The weapon of offence recovered at the instance of accused-Pardeep

was associated with the offence as per the report of the Forensic Science

Laboratory.

17. We have considered the rival submissions and have gone through

the record. In our view, the statements of the eyewitnesses are quite

cogent and consistent with the earliest version recorded in the form of

the First Information Report. The trajectory of the entry of the bullet as

found in the Medical Report is also quite consistent with the version that

the deceased was shot from a height i.e. the roof of the house.

18. Considering the material on record including the eyewitness’s

account as well as the corroborative pieces of material, it is firmly

established that the accused Pardeep fired the fatal shot from the roof of

the house. The involvement of accused-Pardeep is thus beyond any

doubt.

19. We now come to the role played by the other accused in the

transaction. The role ascribed to Ishwar and Krishana, the parents of

accused-Pardeep was of initial exhortation. The parents were stated to

have exhorted the sons; accused-Pardeep and accused-Sandeep to teach 

9

a lesson to the deceased-Surender. It is upon such exhortation that

accused-Pardeep had gone inside, collected the firearm and reached the

rooftop; and while he was there at the rooftop, the crucial exhortation

came from the accused-Sandeep.

20. Thus, all three accused are said to have exhorted accused-Pardeep

but the exhortation given by accused-Sandeep was immediately before

the shot was fired and of a greater impact in as much as he had seen

accused-Pardeep at the rooftop along with the firearm and then made the

exhortation.

21. Considering the entirety of the circumstances, in our view, accused

Ishwar and accused Krishana Devi are entitled to benefit of doubt

whereas the involvement of accused Sandeep stands completely proved

beyond reasonable doubt.

22. We thus find that that the case of prosecution stands proved

against accused-Pardeep and accused-Sandeep and their appeals

deserve to be dismissed while the appeals preferred by accused-Ishwar

and Krishana Devi deserve acceptance.

23. Consequently, Criminal Appeal Nos.1613 and 1614 of 2018

preferred by accused-Sandeep and Pardeep respectively are dismissed 

10

while Criminal Appeal No.1615 of 2018 preferred by accused Ishwar and

Criminal Appeal arising out of Special Leave Petition (Crl.) No.8789 of

2014 preferred by Krishana Devi are allowed. The accused Ishwar and

Krishana Devi be released forthwith unless their custody is required in

connection with any other offence.

24. Ordered accordingly.

…..……........................J.

 (UDAY UMESH LALIT)

 …...…….......................J.

 (AJAY RASTOGI)

NEW DELHI,

AUGUST 27, 2021

The grievance of the appellants is that the tax has been deducted at source when the gratuity was paid to the appellants before the commencement of the Amending Act.=the claim of the appellants to declare the applicability of Payment of Gratuity (Amendment) Act, 20101 from 1.1.2007 was declined.= we find that the date of commencement fixed by the Executive in exercise of power delegated by the Amending Act cannot be treated to be retrospective as the benefit of higher gratuity is one-time available to the employees only after the commencement of the Amending Act. The benefit paid to the appellants under the office memorandum is not entitled to exemption in view of specific language of Section 10(10)(ii) of the Income Tax Act.

 The challenge in the present appeal is to an order passed by the High Court of Jharkhand on 27.7.2016 whereby the claim of the appellants to declare the applicability of Payment of Gratuity (Amendment) Act, 20101 from 1.1.2007 was declined. 

The appellants are employees of Coal India Limited. The Government of India approved enhancement of gratuity to the executives and Non-Unionized Supervisors of Central Sector Enterprises such as the Coal India Limited where the appellants were employed. 

The ceiling of the gratuity was raised to Rs.10 lakhs w.e.f. 1.1.2007 in terms of office memorandum of Government of India dated 26.11.2008. 1 For short, the ‘Amending Act’ 1 3. The appellants were paid such gratuity in terms of such office memorandum. 

However, later on, the Payment of Gratuity Act was amended by Central Act No. 15 of 2010 which received the assent of the Hon’ble President on 17.5.2010. The relevant provisions of the Amending Act read as under: “1(1). This Act may be called the payment of Gratuity (Amendment) Act, 2010. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. 2.In Section 4 of the Payment of Gratuity Act, 1972, in subsection (3), for the words “three lakhs and fifty thousand Rupees”, the words “ten lakh rupees” shall be substituted.” 

In terms of sub-section (2) of Section 1 of the Amending Act, a notification was issued by the Government of India on 24.5.2010 appointing the said date as the date on which the Amending Act came into force.  

The grievance of the appellants is that the tax has been deducted at source when the gratuity was paid to the appellants before the commencement of the Amending Act. 

The appellants have thus challenged the date of commencement as 24.5.2010 but asserted that it should be made effective from 1.1.2007 and consequently the appellants would not be liable for deduction of tax on the gratuity amount. 

Certain provisions of the Gratuity Act as it existed prior to 2 For short, the ‘Gratuity Act’ 2 amendment by Central Act No. 12 of 2018 and that of Income Tax Act, 19613 would be necessary to be extracted: 

“The Payment of Gratuity Act, 1972 4. Payment of Gratuity – (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years,- xx xx xx Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement: xx xx xx (3) The amount of gratuity payable to an employee shall not exceed ten lakh rupees. xx xx xx (5) Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.” 

The Income Tax Act, 1961 10. Incomes not included in total income. – In computing the total income of a previous year of any person, any income falling within any of the following clauses shall not be included – 1. xx xx xx 10 (ii). any gratuity received under the Payment of Gratuity Act, 1972 (39 of 1972), to the extent it does not exceed an amount calculated in accordance with the provisions of subsections (2) and (3) of section 4 of that Act;” 

 In State of Punjab v. Amar Nath Goyal [State of Punjab v. Amar Nath Goyal, (2005) 6 SCC 754 : 2005 SCC (L&S) 910] , while examining the validity of cut-off date fixed for grant of benefit of increased quantum of death-cum-retirement gratuity, this Court has held that the financial constraint pleaded by the Government, was a valid ground for fixation of cut-off date and such fixation was not arbitrary, irrational or violative of Article 14 of the Constitution…….” 

In view of the above, we find that the date of commencement fixed by the Executive in exercise of power delegated by the Amending Act cannot be treated to be retrospective as the benefit of higher gratuity is one-time available to the employees only after the commencement of the Amending Act. The benefit paid to the appellants under the office memorandum is not entitled to exemption in view of specific language of Section 10(10)(ii) of the Income Tax Act.  

Consequently, we do not find any error in the order passed by the High Court. The appeal is dismissed. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4744 OF 2021

(ARISING OUT OF SLP (CIVIL) NO. 10622 OF 2017)

KRISHNA GOPAL TIWARY & ANR. .....APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order passed by the

High Court of Jharkhand on 27.7.2016 whereby the claim of the

appellants to declare the applicability of Payment of Gratuity

(Amendment) Act, 20101

 from 1.1.2007 was declined.

2. The appellants are employees of Coal India Limited. The

Government of India approved enhancement of gratuity to the

executives and Non-Unionized Supervisors of Central Sector

Enterprises such as the Coal India Limited where the appellants

were employed. The ceiling of the gratuity was raised to Rs.10

lakhs w.e.f. 1.1.2007 in terms of office memorandum of

Government of India dated 26.11.2008.

1 For short, the ‘Amending Act’

1

3. The appellants were paid such gratuity in terms of such office

memorandum. However, later on, the Payment of Gratuity Act2

was amended by Central Act No. 15 of 2010 which received the

assent of the Hon’ble President on 17.5.2010. The relevant

provisions of the Amending Act read as under:

“1(1). This Act may be called the payment of Gratuity

(Amendment) Act, 2010.

(2) It shall come into force on such date as the Central

Government may, by notification in the Official Gazette,

appoint.

2.In Section 4 of the Payment of Gratuity Act, 1972, in subsection (3), for the words “three lakhs and fifty thousand

Rupees”, the words “ten lakh rupees” shall be substituted.”

4. In terms of sub-section (2) of Section 1 of the Amending Act, a

notification was issued by the Government of India on 24.5.2010

appointing the said date as the date on which the Amending Act

came into force.

5. The grievance of the appellants is that the tax has been deducted

at source when the gratuity was paid to the appellants before the

commencement of the Amending Act. The appellants have thus

challenged the date of commencement as 24.5.2010 but asserted

that it should be made effective from 1.1.2007 and consequently

the appellants would not be liable for deduction of tax on the

gratuity amount.

6. Certain provisions of the Gratuity Act as it existed prior to

2 For short, the ‘Gratuity Act’

2

amendment by Central Act No. 12 of 2018 and that of Income Tax

Act, 19613

 would be necessary to be extracted:

“The Payment of Gratuity Act, 1972

4. Payment of Gratuity – (1) Gratuity shall be payable to an

employee on the termination of his employment after he has

rendered continuous service for not less than five years,-

xx xx xx

Provided that the completion of continuous service of

five years shall not be necessary where the termination of

the employment of any employee is due to death or

disablement:

xx xx xx

(3) The amount of gratuity payable to an employee shall

not exceed ten lakh rupees.

xx xx xx

(5) Nothing in this section shall affect the right of an

employee to receive better terms of gratuity under any

award or agreement or contract with the employer.”

The Income Tax Act, 1961

10. Incomes not included in total income. – In computing

the total income of a previous year of any person, any

income falling within any of the following clauses shall not

be included –

1. xx xx xx

10 (ii). any gratuity received under the Payment of Gratuity

Act, 1972 (39 of 1972), to the extent it does not exceed an

amount calculated in accordance with the provisions of subsections (2) and (3) of section 4 of that Act;”

7. Learned counsel for the appellants argued that the amendment of

the Gratuity Act is to grant liberalised benefits. Therefore, it would

3 For short, the ‘Income Tax Act’

3

be retrospective. Reliance is placed upon judgment of this Court in

Commissioner of Income Tax (Central)-I, New Delhi v. Vatika

Township Private Limited

4

. The aforesaid case is of insertion of

proviso to Section 113 of the Income Tax Act providing that tax

chargeable under the said Section shall be increased by a

surcharge and shall be applicable in the assessment year relevant

to the previous year in which the search is initiated under Section

132 of the said Act. It was the said provision which came up for

consideration before this Court. This Court held as under:

“31. In such cases, retrospectivity is attached to benefit the

persons in contradistinction to the provision imposing some

burden or liability where the presumption attaches towards

prospectivity. In the instant case, the proviso added to

Section 113 of the Act is not beneficial to the assessee. On

the contrary, it is a provision which is onerous to the

assessee. Therefore, in a case like this, we have to proceed

with the normal rule of presumption against retrospective

operation. Thus, the rule against retrospective operation is a

fundamental rule of law that no statute shall be construed to

have a retrospective operation unless such a construction

appears very clearly in the terms of the Act, or arises by

necessary and distinct implication. Dogmatically framed, the

rule is no more than a presumption, and thus could be

displaced by outweighing factors.”

8. Learned counsel for the appellants also referred to a judgment of

this Court in D.S. Nakara & Ors. v. Union of India

5

 to contend

that the cut-off date as 24.5.2010 has created two categories of

employees, first who have attained the age of superannuation

before the said date and second who have superannuated on or

after 24.5.2010. Such classification is illegal and arbitrary in

4 (2015) 1 SCC 1

5 (1983) 1 SCC 305

4

nature.

9. On the other hand, Mr. Vikramjit Banerjee, learned counsel for the

Union has argued that D.S. Nakara’s case deals with pensioners,

who get recurring benefit every month whereas, the gratuity is

one-time payment. This Court has held that the cut-off date so as

to grant benefit of pension to the retirees after the cut-off date and

to deny the retirees pension before the cut-off date is arbitrary. It

was thus argued that benefit of gratuity stands on different footing,

then recurring right of payment of pension. This Court held as

under:

“38. What then is the purpose in prescribing the specified

date vertically dividing the pensioners between those who

retired prior to the specified date and those who retire

subsequent to that date? That poses the further question,

why was the pension scheme liberalised? What necessitated

liberalisation of the pension scheme?

xx xx xx

42. If it appears to be undisputable, as it does to us that the

pensioners for the purpose of pension benefits form a class,

would its upward revision permit a homogeneous class to be

divided by arbitrarily fixing an eligibility criteria unrelated to

purpose of revision, and would such classification be

founded on some rational principle? The classification has to

be based, as is well settled, on some rational principle and

the rational principle must have nexus to the objects sought

to be achieved. We have set out the objects underlying the

payment of pension. If the State considered it necessary to

liberalise the pension scheme, we find no rational principle

behind it for granting these benefits only to those who

retired subsequent to that date simultaneously denying the

same to those who retired prior to that date…”

10. The aforesaid judgment has come up for consideration before this

5

Court in a judgment reported as State Government Pensioners’

Association & Ors. v. State of Andhra Pradesh

6

 wherein the

payment of gratuity from a specified date of retirement was held to

be not unconstitutional. This Court held as under:

“2. … Similar is the case with regard to gratuity which has

already been paid to the petitioners on the then prevailing

basis as it obtained at the time of their respective dates of

retirement. The amount got crystallized on the date of

retirement on the basis of the salary drawn by him on the

date of retirement. And it was already paid to them on that

footing. The transaction is completed and closed. There is no

scope for upward or downward revision in the context of

upward or downward revision of the formula evolved later on

in future unless the provision in this behalf expressly so

provides retrospectively (downward revision may not be

legally permissible even)….”

11. Similar view was taken in a judgment reported as Union of India

v. All India Services Pensioners’ Association & Anr.

7

 wherein

it was held that the pension is payable periodically as long as the

pensioner is alive whereas the gratuity is ordinarily paid only once

on retirement. This Court held as under:

“8. From the foregoing it is clear that this Court has made a

distinction between the pension payable on retirement and

the gratuity payable on retirement. While pension is payable

periodically as long as the pensioner is alive, gratuity is

ordinarily paid only once on retirement. No other decision of

this Court which has taken a view contrary to the decision of

Thakkar and Ray, JJ. in Andhra Pradesh State Government

Pensioners' Association case [(1986) 3 SCC 501 : 1986 SCC

(L&S) 676] and to the decision in N.L. Abhyankar

case [(1984) 3 SCC 125 : 1984 SCC (L&S) 486] has been

brought to out notice. The observations made in these two

cases are binding on us insofar as the applicability of the

rule in D.S. Nakara case [(1983) 1 SCC 305 : 1983 SCC (L&S)

145 : (1983) 2 SCR 165 : 1983 UPSC 263] to the liability of

the Government to pay gratuity on retirement. We

6 (1986) 3 SCC 501

7 (1988) 2 SCC 580

6

respectfully agree with the views expressed in those

decisions. It is also not shown that the Government

notification in question either expressly or by necessary

implication directs that those who had retired prior to 1-1-

1973 would be entitled to any additional amount by way of

gratuity. The Tribunal was, therefore, in error in upholding

that gratuity was payable in accordance with the

Government Notification No. 33/12/73-AISC(ii) dated 24-1-

1975 to all those members of the All-India Services who had

retired prior to 1-1-1973.”

12. Sub-section (5) of Section 4 of the Gratuity Act protects the right of

an employee to receive better terms of gratuity under any award or

contract with the employer. The gratuity paid to the appellants on

the strength of office memorandum dated 26.11.2008 would fall in

the said sub-section.

13. However, what is exempt from the Income Tax Act is the amount of

gratuity received under the Gratuity Act to the extent it does not

exceed an amount calculated in accordance with the provisions of

sub-sections (2) and (3) of Section 4 of the Gratuity Act. The

Gratuity Act contemplated rupees ten lakhs as the amount of

gratuity only from 24.5.2010. Such gratuity is the amount payable

only once. Thus, the cut-off date cannot be said to be illegal, it

being one-time payment. Therefore, such amendment in the

Gratuity Act cannot be treated to be retrospective. Therefore, the

provisions of the statute cannot be said to be retrospective.

14. In a judgment of this Court reported as Sri Vijayalakshmi Rice

Mills, New Contractors Co. & Ors. v. State of Andhra

7

Pradesh

8

, the new rate of supply of rice was made effective on

23.3.1964. The question arose was as to whether the rice supplied

earlier would have the benefit of beneficial provision as contained

in the later notification dated 23.3.1964. This Court held that price

as was prevalent on the date of sale alone would be payable and

not the higher price introduced by amendment. It was held as

under:

“6. The aforesaid sales in the instant cases having been

made by the appellants before the coming into force of the

Rice (Andhra Pradesh) Price Control (Third Amendment)

Order, 1964, and the property in the goods having passed to

the Government of Andhra Pradesh on the dates the

supplies were made, the appellants had to be paid only at

the controlled price obtaining on the dates the sales were

effected and not at the increased price which came into

operation subsequently.”

15. In another judgment reported as Orient Paper and Industries

Ltd. & Anr. v. State of Orissa & Ors.

9

, it was held that since the

executive has been empowered to choose the date of

commencement of the Act, such delegation cannot be said to be

case of excessive delegation. The Court held as under:

“29. Even if the section were to be seen as a delegation of

power, it is a power conferred on the government to give full

effect to the policy behind the legislation. It is with a view to

achieving that purpose that the executive has been

empowered to choose the time, place and forest produce for

bringing the Act into operation having regard to the

particular facts and circumstances in the contemplation of

the legislature. There is no excessive delegation in such

statutory grant of power. [See Gwalior Rayon Silk Mfg.

(Wvg.) Co. Ltd. v. CST [(1974) 4 SCC 98 : 1974 SCC (Tax) 226

: (1974) 2 SCR 879] ; Harishankar Bagla v. State of

M.P. [(1955) 1 SCR 380, 388 : AIR 1954 SC 465] ]”

8 (1976) 3 SCC 37

9 1991 Supp. (1) SCC 81

8

16. In a recent judgment reported as Himachal Road Transport

Corporation & Anr. v. Himachal Road Transport Corporation

Retired Employees Union

10

, in the case of payment of increased

quantum of death-cum-retirement gratuity, it was held that the cutoff date cannot be said to be arbitrary which was fixed keeping in

view financial constraints. This Court held as under:

“18. Though there are long line of cases, where validity of

fixation of cut-off date is considered by this Court, we

confine and refer to the case law which is relevant to the

facts of the case on hand. In State of Punjab v. Amar Nath

Goyal [State of Punjab v. Amar Nath Goyal, (2005) 6 SCC

754 : 2005 SCC (L&S) 910] , while examining the validity of

cut-off date fixed for grant of benefit of increased quantum

of death-cum-retirement gratuity, this Court has held that

the financial constraint pleaded by the Government, was a

valid ground for fixation of cut-off date and such fixation was

not arbitrary, irrational or violative of Article 14 of the

Constitution…….”

17. In view of the above, we find that the date of commencement fixed

by the Executive in exercise of power delegated by the Amending

Act cannot be treated to be retrospective as the benefit of higher

gratuity is one-time available to the employees only after the

commencement of the Amending Act. The benefit paid to the

appellants under the office memorandum is not entitled to

exemption in view of specific language of Section 10(10)(ii) of the

Income Tax Act.

10 (2021) 4 SCC 502

9

18. Consequently, we do not find any error in the order passed by the

High Court. The appeal is dismissed.

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

(HEMANT GUPTA)

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

(A.S. BOPANNA)

NEW DELHI;

AUGUST 13, 2021.

10

Section 482 Cr.P.C. - High court has quashed the entire proceedings of Criminal Case under Sections 147, 148, 149, 406, 329 and 386 IPC - The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial.

Section 482 Cr.P.C. - High court has quashed the entire proceedings of Criminal Case  under Sections 147, 148, 149, 406, 329 and 386 IPC - The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarized affidavit of Mamta Gupta –Accused No.2 and Munni Devi under which according to Accused no.2 -Ms. Mamta Gupta, Rs.25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27.10.2010, the sale consideration is stated to be Rs.25 lakhs and with no reference to payment of Rs.25 lakhs to Ms. Munni Devi and no reference to handing over the possession. However, in the joint notarized affidavit of the same date i.e., 27.10.2010 sale consideration is stated to be Rs.35 lakhs out of which Rs.25 lakhs is alleged to have been paid and there is areference to transfer of possession to Accused No.2. Whether Rs.25lakhs has been paid or not the accused have to establish during the trial,because the accused are relying upon the said document and paymentof Rs.25 lakhs as mentioned in the joint notarized affidavit dated27.10.2010. It is also required to be considered that the first agreementto sell in which Rs.25 lakhs is stated to be sale consideration and thereis reference to the payment of Rs.10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarized affidavit dated 27.10.2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarized affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs.25 lakhs as mentioned in the joint notarized affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs.2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C. 

Even the High Court has erred in observing that original complaint has no locus. The aforesaid observation is made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the High Court. However, when it is specifically stated in the FIR that Munni Devi has executed the power of attorney and thereafter the Investigating Officer has conducted the investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial. 

In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C. is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 Cr.P.C. only and the trial Court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the  observations made by us hereinabove. The present appeal is accordingly allowed. .

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 787 OF 2021

Kaptan Singh …Appellant

Versus

The State of Uttar Pradesh and others …Respondents

J U D G M E N T

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 29.07.2020 passed by the High Court of Judicature at

Allahabad in Application under Section 482 No. 1697 of 2016, by which

the High Court in exercise of powers under Section 482 Cr.P.C. has

quashed the entire proceedings of Criminal Case No. 3302 of 2015

under Sections 147, 148, 149, 406, 329 and 386 IPC, P.S. Barra, District

1

Kanpur Nagar, pending in the Court of I-Additional Chief Metropolitan

Magistrate, Kanpur Nagar, the original complainant has preferred the

present appeal.

2. That the appellant herein filed a complaint before the learned

Magisterial Court under Section 156(3) Cr.P.C. against the private

respondents for the offences under Sections 147, 148, 149, 406, 329

and 386 IPC; that the learned Additional Chief Metropolitan Magistrate,

Kanpur Nagar, by order dated 07.09.2015, after perusal of the facts

mentioned in the application/complaint and documents and having found

a prima facie case of cognizable offence and having observed that the

police is required to investigate the same, allowed the said application

under Section 156(3) Cr.P.C. and directed the concerned Station House

Officer to register the first information report and investigate it in

accordance with law.

2.1 That thereafter the concerned SHO registered the FIR as Case

Crime No. 0645 of 2015 against the private respondents herein for the

offences under Sections 147, 148, 149, 406, 329 and 386 IPC. As per

the allegations in the FIR, one Munni Devi was the owner of Plot No.

1342, W Block 2 Yojna Juhi Kala, Damodar Nagar, admeasuring 387

sq.ft.; that she appointed the complainant – Kaptan Singh as her power

2

of attorney holder to take care of the said plot; that Munni Devi wanted to

sell the said plot; that she entered into a registered agreement to sell

with one Mamta Gupta – respondent no. 3 herein on 27.10.2010 for a

total sale consideration of Rs.25,00,000/-; that at the time of agreement,

the purchaser – Mamta Gupta handed over five cheques of Rs. 2 lakh

each, drawn on ICICI Bank, Branch Govind Nagar, Kanpur; that Munni

Devi presented one of the cheques no. 502314 dated 15.11.2010 in her

bank and the said cheque was dishonoured “due to insufficient funds”;

that when the cheque returned unpaid, Munni Devi contacted Mamta

Gupta and then she informed her that her husband is suffering from

kidney failure and facing financial problem and therefore she would not

be able to purchase the said plot, however she is arranging money; that

thereafter Mamta Gupta showed no interest for registration of sale deed

and she informed Munni Devi not to present the cheques; that thereafter

Munni Devi served a legal notice dated 02.01.2015 and 18.05.2015

through registered post; that after receiving notice dated 18.05.2015,

Mamta Gupta showed no positive response, then Munni Devi appointed

the complainant as a power of attorney holder on 05.08.2015.

2.2 It was alleged that thereafter when the complainant along with his

friend Ram Pratap Singh went to the plot on 20.08.2015, at that time

Mamta Gupta and her husband were present there along with three

3

other persons outside the tin shed. The complainant told them that they

have not paid the full consideration amount and had forcibly put lock on

the room and requested them to open the said lock. At that time, Mamta

Gupta and her husband told them that they had paid Rs. 2 lakhs and

they will not open the lock till the time they will get Rs. 10 lakhs. It was

alleged that all the persons abused the complainant by using filthy

language relating to his mother and sister and pushed the complainant

due to which he fell down and thereafter he was beaten with fist and

Mamta Gupta, who was carrying knife like weapon, kept the edged part

of it on his chest and gave a blank paper and threatened him to sign it, if

not, then he will be killed and the complainant signed it. The

complainant also produced the medical report. That thereafter after the

completion of the investigation and after recording of the statement of

the witnesses, statement of the complainant and after collecting the

evidence from the place of incident and taking statement of independent

witnesses and even the statement of the accused persons, after due

enquiry and having satisfied that a prima facie case is made out against

the accused for the offences under Sections 147, 148, 149, 406, 329

and 386 IPC, the investigating officer filed chargesheet no. 320/2015

dated 26.11.2015 against the private respondents herein for the

aforesaid offences.

4

2.3 That thereafter the private respondents herein approached the

High Court for quashing criminal proceedings under Section 482 Cr.P.C.

It was the case on behalf of all the accused – private respondents herein

in the 482 petition that dispute is of a civil nature; that Munni Devi

entered into a registered agreement to sell on 27.10.2010 with Mamta

Gupta as vendee; that Munni Devi undertook to get the land free hold

done on the aforesaid plot and thereafter to execute the sale deed in

favour of Mamta Gupta; that part payment was made immediately by

cheque and cash both and the remaining amount of Rs. 10 lakhs were to

be paid at the time of execution of the sale deed; that on the same date

a joint notarized affidavit of Mamta Gupta and Munni Devi was also

executed demonstrating the payment of Rs. 25 lakhs by Mamta Gupta

and the transfer of possession to Mamta Gupta; that after obtaining

possession Mamta Gupta constructed a two-room set on the said plot. It

was also the case on behalf of the accused that thereafter Munni Devi

did not get the free hold executed and since the husband of Mamta

Gupta was suffering from a renal failure and was undergoing dialysis,

she could not initiate legal proceedings for specific performance; that

thereafter Munni Devi filed a suit in the Court of Civil Judge (Senior

Division), Kanpur Nagar. It was also the case on behalf of the private

respondents – accused that as Munni Devi did not get any relief from the

court below, she got in touch with a land mafia – the original complainant

5

– the appellant herein and he was the power of attorney holder of Munni

Devi and that when he visited the plot on 20.08.2015 he was thrown out

and was assaulted. That thereafter Mamta Gupta filed a suit for

permanent injunction being O.S. No. 2077 of 2015 in the Court of Civil

Judge (Senior Division), Kanpur Nagar wherein temporary injunction had

been granted in favour of Mamta Gupta and the said order is still in

operation. Therefore, it was submitted that the dispute is purely of a civil

nature and criminal proceedings have been lodged only with a view to

pressurize Mamta Gupta to handover the plot to the complainant even

though Mamta Gupta has paid a sum of Rs.25 lakhs to the owner of the

plot in question. Therefore, it was prayed to quash the entire FIR.

3. That the 482 petition was opposed by the original complainant. A

detailed affidavit/counter affidavit was filed on behalf of the original

complainant. It was specifically the case on behalf of the complainant

that the documents alleged to have been executed by Munni Devi in

favour of Mamta Gupta on 27.10.2010/subsequent notarized document

dated 27.10.2010 are fabricated in which it is stated that Rs. 25 lakhs

have been paid and that the possession has been handed over to

Mamta Gupta. It was also pointed out that for the aforesaid another first

information report has been registered against them on 04.12.2015,

registered as Case Crime No. 816 of 2015 under Sections 420, 467,

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468, 471 IPC at Police Station Barra, District Kanpur Nagar and the

investigation is still going on. It was also submitted that the electricity

connection was obtained by Mamta Gupta in a fraudulent manner and

subsequently the said electricity connection has been permanently

disconnected by Electricity Department, Kanpur Nagar on 18.08.2015

and no electric connection exists in the premises in question till today. It

was also submitted that after the completion of the investigation and

after collecting the credible evidence against the accused, the

investigating officer has submitted a chargesheet and the learned

Magistrate after applying its mind judiciously has taken cognizance

against the accused. Therefore, it was prayed to dismiss 482

application.

4. By the impugned judgment and order, the High Court has allowed

the said application and has quashed the entire criminal proceedings

mainly on the grounds that the original complainant – Kaptan Singh for

all practical purposes is ranked outsider and stranger to the deal and

therefore the criminal proceedings initiated at his behest cannot

continue; that no power of attorney executed by Munni Devi in his favour

has been filed with the counter affidavit and on the ground that the

dispute is of a civil nature and civil suits are pending between the parties

and veracity and genuineness of the notarized affidavit signed by Munni

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Devi and Mamta Gupta can be considered in the civil proceedings and

there was no entrustment of property and therefore no case is made out

for the offence under Section 406 of the IPC. That having observed that

there is no case against the accused under Section 406 IPC, the High

Court has further observed that rest of the allegations are tangent to the

main allegation without any corroborating evidence.

5. Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court, quashing the entire criminal

proceedings in exercise of its inherent powers under Section 482

Cr.P.C., the original complainant has preferred the present appeal.

6. Shri Santosh Kumar Pandey, learned Counsel appearing on behalf

of the appellant has vehemently submitted that in the facts and

circumstances of the case the High Court has committed a grave error in

quashing the criminal proceedings in exercise of powers under Section

482 Cr.P.C. It is further submitted that the High Court ought to have

appreciated and considered the fact that after the FIR was lodged, the

same came to be investigated by the Investigating Officer and after

thorough investigation and recording the statement of the witnesses and

after collecting the evidence and even after recording the statements of

the independent witnesses and statement of the accused persons and

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after holding inquiry the Investigating Officer filed the charge-sheet

against the accused persons and even thereafter the Learned

Magistrate also took the cognizance. It is submitted that the aforesaid

aspect has not been considered at all by the High Court while quashing

the criminal proceedings in exercise of powers under Section 482

Cr.P.C.

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

and consider that there are contentious issues which can be considered

only at the time of trial.

6.2 It is further submitted that the High Court has entered into the

merits of the allegations at the stage of quashing proceedings under

Section 482 Cr.P.C. It is submitted that as held by this Court in catena of

decisions while exercising the powers under Section 482 Cr.P.C., the

High Court is not required to enter into and/or consider the merits of the

allegations in detail, which as such are required to be considered at the

time of trial. Heavy reliance is placed on the decisions of this Court in

Dineshbhai Chandubhai Patel vs. State of Gujarat, (2018) 3 SCC

104; Dhruvaram Murlidhar Sonar vs. State of Maharashtra, (2019) 18

SCC 191; CBI vs. Arvind Khanna, (2019) 10 SCC 686; Telangana vs.

Managipet, (2019) 19 SCC 87; XYZ vs. State of Gujarat, (2019) 10

SCC 337.

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6.3 It is submitted that as held by this Court in the case of XYZ

(Supra) when there are serious triable allegations in complaint it is

improper to quash the FIR in exercise of inherent powers of High Court

under Section 482 Cr.P.C.

6.4 It is further submitted that the High Court has failed to appreciate

and consider that the civil proceedings were initiated initially by Munni

Devi and thereafter the accused no.2 filed the suit only for permanent

injunction and no suit for specific performance has been filed. It is

submitted that as such there are very serious allegations of forgery of

the joint notarized document dated 27.10.2010 by which the accused

have alleged to have given Rs.25 lakhs to Munni Devi. It is submitted

that the High Court has failed to appreciate and consider the fact that in

the present case there are two documents of the very date i.e.

27.10.2010, one is registered one in which the sale consideration is

stated to be Rs.25 lakhs and in another document of same date dated

27.10.2010, the sale consideration is stated to be Rs.35 lakhs and it is

stated that Rs.25 lakhs have been paid to Munni Devi. It is submitted

that the payment of Rs.25 lakhs and even the existence of joint

notarized agreement dated 27.10.2010 is to be considered at the time of

trial. It is submitted that therefore, when there are serious triable issues,

the High Court is not justified in quashing the criminal proceedings.

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7. Shri Ankit Goel, learned Counsel appearing on behalf of State of

Uttar Pradesh has supported the appellant - original complainant.

8. Shri Amit Kumar Singh, learned Counsel appearing on behalf of

the private respondents while opposing the present appeal has

vehemently submitted that in the facts and circumstances of the case the

High Court has not committed any error in quashing the criminal

proceedings.

8.1 It is submitted that as rightly observed by the High Court, the case

squarely falls within the exceptions as observed and held by this Court in

the case of State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335.

8.2 It is submitted that in the present case there was no entrustment of

any property and therefore, there is no question of any offence being

committed under Section 406 IPC. It is submitted that therefore when

the ingredients for the offence under Section 406 IPC are not satisfied

and as rightly observed by the High Court the genuineness of the

documents dated 27.10.2010 are to be considered in the civil

proceedings and which are not required to be considered in the criminal

proceedings, the High Court is absolutely justified in quashing the

criminal proceedings. It is submitted that as such the civil dispute is tried

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to be converted into criminal dispute which can be said to be nothing but

an abuse of process of law.

8.3 It is further submitted by learned Counsel appearing on behalf of

private respondents that even in the present case medical certificate

which is now produced before this Court, was not produced before the

High Court. It is submitted therefore in absence of any medical report

produced before the High Court and even otherwise the injuries

mentioned in the medical report are simple in nature, no case is made

out for the other offences and therefore the High Court has rightly

quashed the criminal proceedings.

8.4 It is further submitted that as observed by the High Court even the

original complainant has no locus to file the complaint as no power of

attorney alleged to have been executed by Munni Devi was placed on

record.

8.5 Making the above submissions, it is prayed to dismiss the appeal.

9 Heard learned Counsel for the respective parties at length.

9.1 At the outset, it is required to be noted that in the present case the

High Court in exercise of powers under Section 482 Cr.P.C. has quashed

the criminal proceedings for the offences under Sections 147, 148, 149,

406, 329 and 386 of IPC. It is required to be noted that when the High

12

Court in exercise of powers under Section 482 Cr.P.C. quashed the

criminal proceedings, by the time the Investigating Officer after recording

the statement of the witnesses, statement of the complainant and

collecting the evidence from the incident place and after taking

statement of the independent witnesses and even statement of the

accused persons, has filed the charge-sheet before the Learned

Magistrate for the offences under Sections 147, 148, 149, 406, 329 and

386 of IPC and even the learned Magistrate also took the cognizance.

From the impugned judgment and order passed by the High Court, it

does not appear that the High Court took into consideration the material

collected during the investigation/inquiry and even the statements

recorded. If the petition under Section 482 Cr.P.C. was at the stage of

FIR in that case the allegations in the FIR/Complaint only are required to

be considered and whether a cognizable offence is disclosed or not is

required to be considered. However, thereafter when the statements are

recorded, evidence is collected and the charge-sheet is filed after

conclusion of the investigation/inquiry the matter stands on different

footing and the Court is required to consider the material/evidence

collected during the investigation. Even at this stage also, as observed

and held by this Court in catena of decisions, the High Court is not

required to go into the merits of the allegations and/or enter into the

merits of the case as if the High Court is exercising the appellate

13

jurisdiction and/or conducting the trial. As held by this Court in the case

of Dineshbhai Chandubhai Patel (Supra) in order to examine as to

whether factual contents of FIR disclose any cognizable offence or not,

the High Court cannot act like the Investigating agency nor can exercise

the powers like an Appellate Court. It is further observed and held that

question is required to be examined keeping in view, the contents of FIR

and prima facie material, if any, requiring no proof. At such stage, the

High Court cannot appreciate evidence nor can it draw its own

inferences from contents of FIR and material relied on. It is further

observed it is more so, when the material relied on is disputed. It is

further observed that in such a situation, it becomes the job of the

Investigating Authority at such stage to probe and then of the Court to

examine questions once the charge-sheet is filed along with such

material as to how far and to what extent reliance can be placed on such

material.

9.2 In the case of Dhruvaram Murlidhar Sonar (Supra) after

considering the decisions of this Court in Bhajan Lal (Supra), it is held

by this Court that exercise of powers under Section 482 Cr.P.C. to quash

the proceedings is an exception and not a rule. It is further observed

that inherent jurisdiction under Section 482 Cr.P.C. though wide is to be

exercised sparingly, carefully and with caution, only when such exercise

14

is justified by tests specifically laid down in section itself. It is further

observed that appreciation of evidence is not permissible at the stage of

quashing of proceedings in exercise of powers under Section 482

Cr.P.C. Similar view has been expressed by this Court in the case of

Arvind Khanna (Supra), Managipet (Supra) and in the case of XYZ

(Supra), referred to hereinabove.

9.3 Applying the law laid down by this Court in the aforesaid decisions

to the facts of the case on hand, we are of the opinion that the High

Court has exceeded its jurisdiction in quashing the criminal proceedings

in exercise of powers under Section 482 Cr.P.C.

10 The High Court has failed to appreciate and consider the fact that

there are very serious triable issues/allegations which are required to be

gone into and considered at the time of trial. The High Court has lost

sight of crucial aspects which have emerged during the course of the

investigation. The High Court has failed to appreciate and consider the

fact that the document i.e. a joint notarized affidavit of Mamta Gupta –

Accused No.2 and Munni Devi under which according to Accused no.2 -

Ms. Mamta Gupta, Rs.25 lakhs was paid and the possession was

transferred to her itself is seriously disputed. It is required to be noted

that in the registered agreement to sell dated 27.10.2010, the sale

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consideration is stated to be Rs.25 lakhs and with no reference to

payment of Rs.25 lakhs to Ms. Munni Devi and no reference to handing

over the possession. However, in the joint notarized affidavit of the

same date i.e., 27.10.2010 sale consideration is stated to be Rs.35 lakhs

out of which Rs.25 lakhs is alleged to have been paid and there is a

reference to transfer of possession to Accused No.2. Whether Rs.25

lakhs has been paid or not the accused have to establish during the trial,

because the accused are relying upon the said document and payment

of Rs.25 lakhs as mentioned in the joint notarized affidavit dated

27.10.2010. It is also required to be considered that the first agreement

to sell in which Rs.25 lakhs is stated to be sale consideration and there

is reference to the payment of Rs.10 lakhs by cheques. It is a registered

document. The aforesaid are all triable issues/allegations which are

required to be considered at the time of trial. The High Court has failed

to notice and/or consider the material collected during the investigation.

11. Now so far as the finding recorded by the High Court that no case

is made out for the offence under Section 406 IPC is concerned, it is to

be noted that the High Court itself has noted that the joint notarized

affidavit dated 27.10.2010 is seriously disputed, however as per the High

Court the same is required to be considered in the civil proceedings.

There the High Court has committed an error. Even the High Court has

16

failed to notice that another FIR has been lodged against the accused

for the offences under Sections 467, 468, 471 IPC with respect to the

said alleged joint notarized affidavit. Even according to the accused the

possession was handed over to them. However, when the payment of

Rs.25 lakhs as mentioned in the joint notarized affidavit is seriously

disputed and even one of the cheques out of 5 cheques each of Rs.2

lakhs was dishonoured and according to the accused they were handed

over the possession (which is seriously disputed) it can be said to be

entrustment of property. Therefore, at this stage to opine that no case is

made out for the offence under Section 406 IPC is premature and the

aforesaid aspect is to be considered during trial. It is also required to be

noted that the first suit was filed by Munni Devi and thereafter

subsequent suit came to be filed by the accused and that too for

permanent injunction only. Nothing is on record that any suit for specific

performance has been filed. Be that as it may, all the aforesaid aspects

are required to be considered at the time of trial only. Therefore, the

High Court has grossly erred in quashing the criminal proceedings by

entering into the merits of the allegations as if the High Court was

exercising the appellate jurisdiction and/or conducting the trial. The High

Court has exceeded its jurisdiction in quashing the criminal proceedings

in exercise of powers under Section 482 Cr.P.C.

17

12. Even the High Court has erred in observing that original complaint

has no locus. The aforesaid observation is made on the premise that

the complainant has not placed on record the power of attorney along

with the counter filed before the High Court. However, when it is

specifically stated in the FIR that Munni Devi has executed the power of

attorney and thereafter the Investigating Officer has conducted the

investigation and has recorded the statement of the complainant,

accused and the independent witnesses, thereafter whether the

complainant is having the power of attorney or not is to be considered

during trial.

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

impugned judgment and order passed by the High Court quashing the

criminal proceedings in exercise of powers under Section 482 Cr.P.C. is

unsustainable and the same deserves to be quashed and set aside and

is accordingly quashed and set aside. Now, the trial to be conducted

and proceeded further in accordance with law and on its own merits. It

is made clear that the observations made by this Court in the present

proceedings are to be treated to be confined to the proceedings under

Section 482 Cr.P.C. only and the trial Court to decide the case in

accordance with law and on its own merits and on the basis of the

evidence to be laid and without being influenced by any of the

18

observations made by us hereinabove. The present appeal is

accordingly allowed.

.……………………………………J.

[Dr. Dhananjaya Y. Chandrachud]

…………………………………….J.

 [M. R. Shah]

New Delhi,

August 13, 2021

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