When the plea of juvenility has not been raised in a bonafide and truthful manner and when the reliance is on a document to seek juvenility which is not reliable or dubious in nature, the appellant cannot be treated to be juvenile keeping in view that the Act is a beneficial legislation.

When the plea of juvenility has not been raised in a bonafide and truthful manner and when the reliance is on a document to seek juvenility which is not reliable or dubious in nature, the appellant cannot be treated to be juvenile keeping in view that the Act is a beneficial legislation.

the appellant was arrayed as an accused in respect of an occurrence on 18.01.2011, wherein the allegation against the appellant was that 1 he waylaid a car and snatched Rs. 22 lacs from the occupants of the car. The complainant was one of the occupant of the car, whereas, another occupant - Bhim Singh lost his life on account of bullet fired on him. During the pendency of the trial, the appellant moved an application on 07.10.2014 claiming that he was a juvenile as on the date of the incident, relying upon his school record disclosing his date of birth as 13.05.1993.

The learned Additional Sessions Judge, after remand, found the appellant to be 16 years 8 months and 5 days old on the date of incident as per the Ossification Test report. The age of the appellant as assessed by the Board of Doctors in the report was 23-24 years. The High Court however while setting aside the order of the learned Additional Sessions Judge relied upon the family register prepared under The U.P. Panchayat Raj (Maintenance of Family Register) Rules, 19701 to hold that the appellant’s plea of juvenility cannot be allowed. Such order is the subject matter of challenge in the present appeal.

Birth Certificate 

8. First, we shall examine the truthfulness of the birth certificate issued by the Government of Uttar Pradesh wherein the date of birth is mentioned as 13.05.1993. Such date of birth was registered on 19.11.2014 after the filing of the application under Section 7A of the Act on 7.10.2014. 

9. We find that such date of birth certificate has been arranged to claim benefit under the 2000 Act. The date of birth certificate produced by the appellant cannot be relied upon as it was obtained after filing of the application under Section 7A of the Act on 7.10.2014. As per the birth certificate, the appellant was born at house. 

Therefore, in terms of Section 8(1)(a) and 10(1)(i) of the Registration of Births and Deaths Act, 19695 , birth had to be reported to the Registrar by the head of the household or by the nearest relative of the head present in the house or by the oldest adult male person present. In case birth is reported within 30 days, it shall be registered on payment of such late fee as may be prescribed. 

There are other conditions for registration of birth after 30 days as well. The relevant provisions of the Act read thus: “8. Persons required to register births and deaths.-(1) It shall be the duty of the persons specified below to give or cause to be given, either orally or in writing, according to the best of their knowledge and belief, within such time as may be prescribed, information to the Registrar of the several particulars required to be entered in the forms prescribed by 5 Registration Act 5 the State Government under sub-section (1) of section 16- (a) in respect of births and deaths in a house, whether residential or non-residential, not being any place referred to in clauses (b) to (e), the head of the house or, in case more than one household live in the house or the household, and if he is not present in the house at any time during the period within which the birth or death has to be reported, the nearest relative of the head present in the house, and in the absence of any such person, the oldest adult male person present therein during the said period; xxx xxx xxx 

10. Duty of certain persons to notify births and deaths and to certify cause of death.-(1) It shall be the duty of- (i) the midwife or any other medical or health attendant at a birth or death, (ii) the keeper or the owner of a place set apart for the disposal of dead bodies or any person required by a local authority to be present at such place, or (iii) any other person whom the State Government may specify in this behalf by his designation. to notify every birth or death or both at which he or she attended or was present, or which occurred in such areas as may be prescribed, to the Registrar within such time and in such manner as may be prescribed.” 

10. Therefore, the Courts have rightly not relied upon date of birth certificate which was granted on 19.11.2014 as it was obtained after filing of the application and registered many years after the birth and not immediately or within the prescribed time period. 

ii. School Leaving Certificate 

11. The school leaving certificate (Ex. A-3) has been proved by examining Umesh Kumar, Head Teacher of Adarsh Siksha Sadan, Pinna. As per the 6 statement of the witness, the school was functioning in the year 1999 in Village Kheri, Dudadhari and was shifted to Village Pinna in the year 2009-2010 where he had been working as Head Teacher from the year 2000. 

As per the certificate, the appellant was a student of such school from 12.7.1999 till 2.7.2003. In cross-examination, he admits that the school is a private school and the father of the appellant has not produced any certificate of the appellant attending the first class. The appellant was admitted directly in the 2nd standard. He admits that Exhibit A-1, the admission form, is a loose sheet prepared in his handwriting and it does not bear any counter signature of any higher authority. He has not even produced any proof of registration of the school with the Education Department. 12. The so-called admission form was filled up by him in 1999, so was the school leaving certificate of the year 2003. A perusal of the school leaving certificate shows that it was issued on 29.9.14 by Principal of Adarsh Siksha Sadan, Village Kheri, Dudadhari, though the school had shifted to Village Pinna in the year 2009-2010. It is unclear and amusing as to how a certificate be issued by a particular school which has been shifted to another village. This makes the process of issuance of certificate doubtful. 13. On the other hand, Ex R-1 is the certificate produced by the State stating that no school exists by the name of Adarsh Siksha Sadan in the village Kheri, Dudadhari. Such certificate has been issued by 7 Kanishkvir Singh of Primary School, Kheri. 14. The learned Additional Sessions Judge or the High Court have not relied upon such certificate. We find that such school leaving certificate is unreliable and that the certificate is only a procured document for proving juvenility before the court. 

iii. Ossification Test Report 15. The Medical Board has opined the age of the appellant between 23 to 24 years, when the appellant was examined on 13.05.2016. This report has been relied upon by the learned Additional Sessions Judge to allow the plea of juvenility raised by the appellant. However, it is to be noted that ossification test varies based on individual characteristics and hence its reliability has to be examined in each case.

Family Register 23. The Family Register Rules prescribes preparation of a Family Register in the State of Uttar Pradesh which contains family-wise names and particulars of all persons ordinarily residing in the village pertaining to 12 the Gaon Sabha. Such Rules have been framed under Section 110 of the U.P Panchayat Raj Act, 1947.We are unable to approve the broad view taken by the High Court in some of the cases that Family Register is not relevant to determine age of the family members. It is a question of fact as to how much evidentiary value is to be attached to the family register, but to say that it is entirely not relevant would not be the correct enunciation of law. The register is being maintained in accordance with the rules framed under a statute. The entries made in the regular course of the  affairs of the Panchayat would thus be relevant but the extent of such reliance would be in view of the peculiar facts and circumstances of each case. 

37. In terms of Rule 12(3)(iii) of the Rules, birth certificate issued by corporation or municipal authority or a panchayat is a relevant document to prove the juvenility. The family register is not a birth certificate. Therefore, it would not strictly fall within clause (iii) of Rule 12(3) of the Rules. Even Section 94(2)(ii) of the 2015 Act contemplates a birth certificate issued by a panchayat to determine the age. 

The appellant sought to rely upon juvenility only on the basis of school leaving record in his application filed under Section 7A of the 2000 Act. Such school record is not reliable and seems to be procured only to support the plea of juvenility. The appellant has not referred to date of birth certificate in his application as it was obtained subsequently. Needless to say, the plea of juvenility has to be raised in a bonafide and truthful manner. If the reliance is on a document to seek juvenility which is not reliable or dubious in nature, the appellant cannot be treated to be juvenile keeping in view that the Act is a beneficial legislation. As also held in Babloo Pasi, the provisions of the statute are to be interpreted liberally but the benefit cannot be granted to the appellant who has approached the Court with untruthful statement. 39. Therefore, we find that the appellant has approached the Court with unclean hands as the documents relied upon by him are not genuine 20 and trustworthy. Thus, we find that the appellant cannot be given benefit of juvenility. The view taken by the High Court is a possible view in law and does not call for any interference in the present appeal. Accordingly, the appeal is dismissed.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 207 OF 2022

(ARISING OUT OF SLP (CRIMINAL) NO. 8423 OF 2019)

Manoj @ Monu @ Vishal Chaudhary .....APPELLANT(S)

VERSUS

State of Haryana & Anr. .....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 Punjab and Haryana at Chandigarh dated 30.07.2019,

whereby an order passed by the learned Additional Sessions Judge,

Fatehabad declaring the present appellant as juvenile in conflict with

law was set aside and the appellant was ordered to stand trial as an

adult.

2. The facts relevant for the determination of the present appeal are that

the appellant was arrayed as an accused in respect of an occurrence

on 18.01.2011, wherein the allegation against the appellant was that

1

he waylaid a car and snatched Rs. 22 lacs from the occupants of the

car. The complainant was one of the occupant of the car, whereas,

another occupant - Bhim Singh lost his life on account of bullet fired on

him. During the pendency of the trial, the appellant moved an

application on 07.10.2014 claiming that he was a juvenile as on the

date of the incident, relying upon his school record disclosing his date

of birth as 13.05.1993. The learned Additional Sessions Judge accepted

the plea of the appellant and declared him to be juvenile vide order

dated 09.01.2015. Such order was challenged before the High Court by

way of a revision petition. The revision was allowed on 04.05.2016 and

the matter was remitted back to the trial court for adjudicating afresh.

3. The learned Additional Sessions Judge, after remand, found the

appellant to be 16 years 8 months and 5 days old on the date of

incident as per the Ossification Test report. The age of the appellant as

assessed by the Board of Doctors in the report was 23-24 years. The

High Court however while setting aside the order of the learned

Additional Sessions Judge relied upon the family register prepared

under The U.P. Panchayat Raj (Maintenance of Family Register) Rules,

19701

 to hold that the appellant’s plea of juvenility cannot be allowed.

Such order is the subject matter of challenge in the present appeal.

4. The procedure to be followed for determination of age is provided

under Rule 12(3)(b) of the Juvenile Justice (Care and Protection of

1 For short, ‘Family Register Rules’

2

Children) Rules, 20072

, which reads as:

“12. Procedure to be followed in determination of age:

(1) In every case concerning a child or a juvenile in conflict

with law, the court or the Board or as the case may be the

Committee referred to in rule 19 of these rules shall determine

the age of such juvenile or child or a juvenile in conflict with law

within a period of thirty days from the date of making of the

application for that purpose.

(2) The Court or the Board or as the case may be the

Committee shall decide the juvenility or otherwise of the juvenile

or the child or as the case may be the juvenile in conflict with

law, prima facie on the basis of physical appearance or

documents, if available, and send him to the observation home

or in jail.

(3) In every case concerning a child or juvenile in conflict with

law, the age determination inquiry shall be conducted by the

court or the Board or, as the case may be, the Committee by

seeking evidence by obtaining-

(a) (i) the matriculation or equivalent certificates, if

available; and in the absence whereof;

 (ii) the date of birth certificate from the school (other

than a play school) first attended; and in the absence

whereof;

 (iii) the birth certificate given by a corporation or a

municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of

clause (a) above, the medical opinion will be sought from

a duly constituted Medical Board, which will declare the

age of the juvenile or child. In case exact assessment of

the age cannot be done, the Court or the Board or, as the

case may be, the Committee, for the reasons to be

recorded by them, may, if considered necessary, give

benefit to the child or juvenile by considering his/her age

on lower side within the margin of one year

and, while passing orders in such case shall, after taking into

consideration such evidence as may be available, or the medical

opinion, as the case may be, record a finding in respect of his

age and either of the evidence specified in any of the clauses (a)

(i), (ii), (iii) or in the absence whereof, clause (b) shall be the

conclusive proof of the age as regards such child or the juvenile

in conflict with law. “

2 For short, the ‘Rules’

3

5. The Juvenile Justice (Care and Protection of Children) Act, 20003

 stands

repealed by the Juvenile Justice (Care and Protection of Children) Act,

20154

. The procedure for determining the age is now part of Section 94

of 2015 Act which was earlier provided under abovementioned Rule 12

of the Rules.

6. Admittedly, there is no matriculation or equivalent certificate as

contemplated under Rule 12(3)(a)(i). The appellant relied upon date of

birth certificate issued by the school first attended. The learned

Additional Sessions Judge on the other hand relied upon report Exhibit

AW1/A rendered by the Board of Doctors on the basis of Ossification

Test report dated 13.05.2016 wherein the age of the appellant was

found to be 23 to 24 years. The learned Additional Sessions Judge gave

the benefit of variation and determined the age as 22 years on the

date of report and thus he was found to be 16 years 8 months and 5

days old. Still further, the appellant was found entitled to additional

benefit of one year in terms of Rule 12(3)(b) of the Rules, therefore, the

appellant was held to be juvenile in conflict with law. The learned

Additional Sessions Judge has not relied upon the school leaving

certificate or the date of birth certificate relied upon by the appellant.

7. The appellant relies upon three documents such as a Birth Certificate;

School leaving Certificate and the Report of the Ossification Test in

support of his plea of being a juvenile, whereas the State relies upon

3 2000 Act

4 2015 Act

4

the family register prescribed by the Family Register Rules.

i. Birth Certificate

8. First, we shall examine the truthfulness of the birth certificate issued

by the Government of Uttar Pradesh wherein the date of birth is

mentioned as 13.05.1993. Such date of birth was registered on

19.11.2014 after the filing of the application under Section 7A of the

Act on 7.10.2014.

9. We find that such date of birth certificate has been arranged to claim

benefit under the 2000 Act. The date of birth certificate produced by

the appellant cannot be relied upon as it was obtained after filing of

the application under Section 7A of the Act on 7.10.2014. As per the

birth certificate, the appellant was born at house. Therefore, in terms

of Section 8(1)(a) and 10(1)(i) of the Registration of Births and Deaths

Act, 19695

, birth had to be reported to the Registrar by the head of the

household or by the nearest relative of the head present in the house

or by the oldest adult male person present. In case birth is reported

within 30 days, it shall be registered on payment of such late fee as

may be prescribed. There are other conditions for registration of birth

after 30 days as well. The relevant provisions of the Act read thus:

“8. Persons required to register births and deaths.-(1) It

shall be the duty of the persons specified below to give or

cause to be given, either orally or in writing, according to the

best of their knowledge and belief, within such time as may

be prescribed, information to the Registrar of the several

particulars required to be entered in the forms prescribed by

5 Registration Act

5

the State Government under sub-section (1) of section 16-

(a) in respect of births and deaths in a house, whether

residential or non-residential, not being any place

referred to in clauses (b) to (e), the head of the house

or, in case more than one household live in the house

or the household, and if he is not present in the house

at any time during the period within which the birth or

death has to be reported, the nearest relative of the

head present in the house, and in the absence of any

such person, the oldest adult male person present

therein during the said period;

xxx xxx xxx

10. Duty of certain persons to notify births and deaths

and to certify cause of death.-(1) It shall be the duty of-

(i) the midwife or any other medical or health attendant at a

birth or death,

(ii) the keeper or the owner of a place set apart for the

disposal of dead bodies or any person required by a local

authority to be present at such place, or

(iii) any other person whom the State Government may

specify in this behalf by his designation.

to notify every birth or death or both at which he or she

attended or was present, or which occurred in such areas as

may be prescribed, to the Registrar within such time and in

such manner as may be prescribed.”

10. Therefore, the Courts have rightly not relied upon date of birth

certificate which was granted on 19.11.2014 as it was obtained after

filing of the application and registered many years after the birth and

not immediately or within the prescribed time period.

ii. School Leaving Certificate

11. The school leaving certificate (Ex. A-3) has been proved by examining

Umesh Kumar, Head Teacher of Adarsh Siksha Sadan, Pinna. As per the

6

statement of the witness, the school was functioning in the year 1999

in Village Kheri, Dudadhari and was shifted to Village Pinna in the year

2009-2010 where he had been working as Head Teacher from the year

2000. As per the certificate, the appellant was a student of such school

from 12.7.1999 till 2.7.2003. In cross-examination, he admits that the

school is a private school and the father of the appellant has not

produced any certificate of the appellant attending the first class. The

appellant was admitted directly in the 2nd standard. He admits that

Exhibit A-1, the admission form, is a loose sheet prepared in his

handwriting and it does not bear any counter signature of any higher

authority. He has not even produced any proof of registration of the

school with the Education Department.

12. The so-called admission form was filled up by him in 1999, so was the

school leaving certificate of the year 2003. A perusal of the school

leaving certificate shows that it was issued on 29.9.14 by Principal of

Adarsh Siksha Sadan, Village Kheri, Dudadhari, though the school had

shifted to Village Pinna in the year 2009-2010. It is unclear and

amusing as to how a certificate be issued by a particular school which

has been shifted to another village. This makes the process of issuance

of certificate doubtful.

13. On the other hand, Ex R-1 is the certificate produced by the State

stating that no school exists by the name of Adarsh Siksha Sadan in

the village Kheri, Dudadhari. Such certificate has been issued by

7

Kanishkvir Singh of Primary School, Kheri.

14. The learned Additional Sessions Judge or the High Court have not relied

upon such certificate. We find that such school leaving certificate is

unreliable and that the certificate is only a procured document for

proving juvenility before the court.

iii. Ossification Test Report

15. The Medical Board has opined the age of the appellant between 23 to

24 years, when the appellant was examined on 13.05.2016. This report

has been relied upon by the learned Additional Sessions Judge to allow

the plea of juvenility raised by the appellant. However, it is to be noted

that ossification test varies based on individual characteristics and

hence its reliability has to be examined in each case.

16. A textbook of Medical Jurisprudence and Toxicology by Modi, 26th

Edition, pg. 221, delineates the factors relevant to determining the

age-

(1) Height and Weight- it is opined that progressive increase in height

and weight according to age varies so greatly in individuals that it

cannot be depended upon in estimating age in medico-legal cases.

(2) Ossification of Bones- this sign is helpful for determining the age

until ossification is completed, for skiagraphy has now made it possible

to determine even in living persons, the extent of ossification, and the

union of epiphysis in bones.

8

17. Hence, it cannot be reasonably expected to formulate a uniform

standard for determination of the age of the union of epiphysis on

account of variations in climatic, dietetic, hereditary and other factors

affecting the people of the different States of India.

18. Furthermore, this Court in a judgment reported as Jyoti Prakash Rai

v. State of Bihar

6

 held that the medical report determining the age of

a person has never been considered by courts of law as also by the

medical scientist to be conclusive in nature. It was also found that

though the Act is a beneficial legislation but principles of beneficial

legislation are to be applied only for the purpose of interpretation of

the statute and not for arriving at a conclusion as to whether a person

is juvenile or not. The Court held as under:

“12. The 2000 Act is indisputably a beneficial legislation.

Principles of beneficial legislation, however, are to be applied

only for the purpose of interpretation of the statute and not

for arriving at a conclusion as to whether a person is juvenile

or not. Whether an offender was a juvenile on the date of

commission of the offence or not is essentially a question of

fact which is required to be determined on the basis of the

materials brought on record by the parties. In the absence of

any evidence which is relevant for the said purpose as

envisaged under Section 35 of the Evidence Act, the same

must be determined keeping in view the factual matrix

involved in each case. For the said purpose, not only relevant

materials are required to be considered, the orders passed by

the court on earlier occasions would also be relevant.

13. A medical report determining the age of a person has

never been considered by the courts of law as also by the

medical scientists to be conclusive in nature. After a certain

age it is difficult to determine the exact age of the person

concerned on the basis of ossification test or other tests. This

6 (2008) 15 SCC 223

9

Court in Vishnu v. State of Maharashtra [(2006) 1 SCC 283 :

(2006) 1 SCC (Cri) 217] opined : (SCC p. 290, para 20)

“20. It is urged before us by Mr Lalit that the

determination of the age of the prosecutrix by

conducting ossification test is scientifically proved and,

therefore, the opinion of the doctor that the girl was of

18-19 years of age should be accepted. We are unable

to accept this contention for the reasons that the expert

medical evidence is not binding on the ocular evidence.

The opinion of the Medical Officer is to assist the court

as he is not a witness of fact and the evidence given by

the Medical Officer is really of an advisory character

and not binding on the witness of fact.”

In the aforementioned situation, this Court in a number of

judgments has held that the age determined by the doctors

should be given flexibility of two years on either side.”

19. In a judgment reported as Mukarrab v. State of U.P.

7

, it was

observed that a blind and mechanical view regarding the age of a

person cannot be adopted solely on the basis of medical opinion by the

radiological examination. It was also held that the purpose of 2000 Act

is not to give shelter to the accused of grave and heinous offences.

Relying upon judgment of this Court reported as Abuzar Hossain v.

State of West Bengal

8

 and Parag Bhati v. State of Uttar

Pradesh

9

, it was held as under:

“27. In a recent judgment, State of M.P. v. Anoop Singh [State of

M.P. v. Anoop Singh, (2015) 7 SCC 773 : (2015) 4 SCC (Cri) 208] ,

it was held that the ossification test is not the sole criteria for

age determination. Following Babloo Pasi [Babloo Pasi v. State of

Jharkhand, (2008) 13 SCC 133 : (2009) 3 SCC (Cri) 266]

and Anoop Singh cases [State of M.P. v. Anoop Singh, (2015) 7

SCC 773 : (2015) 4 SCC (Cri) 208] , we hold that ossification test

7 (2017) 2 SCC 210

8 (2012) 10 SCC 489

9 (2016) 12 SCC 744

10

cannot be regarded as conclusive when it comes to ascertaining

the age of a person. More so, the appellants herein have

certainly crossed the age of thirty years which is an important

factor to be taken into account as age cannot be determined

with precision. In fact in the medical report of the appellants, it is

stated that there was no indication for dental x-rays since both

the accused were beyond 25 years of age.”

20. This Court in a judgment reported as Babloo Pasi v. State of

Jharkhand and Anr.

10 held that it is neither feasible nor desirable to

lay down an abstract formula to determine the age of a person. It was

held as under:

“22. It is well settled that it is neither feasible nor desirable to

lay down an abstract formula to determine the age of a

person. The date of birth is to be determined on the basis of

material on record and on appreciation of evidence adduced

by the parties. The medical evidence as to the age of a

person, though a very useful guiding factor, is not conclusive

and has to be considered along with other cogent evidence.”

21. In Ramdeo Chauhan v. State of Assam11

, it was held that X-Ray

Ossification Test may provide a surer basis for determining the age of

an individual than the opinion of a medical expert but it can by no

means be so infallible and accurate test so as to indicate the exact

date of birth of the person concerned. It was held as under:

“21. Relying upon a judgment of this Court in Jaya

Mala v. Home Secy., Govt. of J&K [(1982) 2 SCC 538 : 1982

SCC (Cri) 502 : AIR 1982 SC 1297 : 1982 Cri LJ 1777] the

learned defence counsel submitted that the Court can take

notice that the marginal error in age ascertained by

radiological examination is two years on either side. The

aforesaid case is of no help to the accused inasmuch as in

that case the Court was dealing with the age of a detenu

taken in preventive custody and was not determining the

extent of sentence to be awarded upon conviction of an

10 (2008) 13 SCC 133

11 (2001) 5 SCC 714

11

offence. Otherwise also even if the observations made in the

aforesaid judgment are taken note of, it does not help the

accused in any case. The doctor has opined the age of the

accused to be admittedly more than 20 years and less than

25 years. The statement of the doctor is no more than an

opinion, the court has to base its conclusions upon all the

facts and circumstances disclosed on examining of the

physical features of the person whose age is in question, in

conjunction with such oral testimony as may be available. An

X-ray ossification test may provide a surer basis for

determining the age of an individual than the opinion of a

medical expert but it can by no means be so infallible and

accurate a test as to indicate the exact date of birth of the

person concerned. Too much of reliance cannot be placed

upon textbooks, on medical jurisprudence and toxicology

while determining the age of an accused. In this vast country

with varied latitudes, heights, environment, vegetation and

nutrition, the height and weight cannot be expected to be

uniform.”

22. It is pertinent to note here that Dr. Rajeev Chauhan, Member of the

Medical Board in his cross-examination admitted that a man with the

age of 30 to 32 years would also find the same fusion as found in a

man who has crossed the age of 22 years. Keeping in view the said

statement, we find that the conclusion of the Medical Board that the

appellant was 23 to 24 years cannot be said to be conclusive or helpful

to determine the age of the appellant to be less than 18 years on the

date of commission of offence.

iv. Family Register

23. The Family Register Rules prescribes preparation of a Family Register in

the State of Uttar Pradesh which contains family-wise names and

particulars of all persons ordinarily residing in the village pertaining to

12

the Gaon Sabha. Such Rules have been framed under Section 110 of

the U.P Panchayat Raj Act, 1947. The High Court has relied on such

certificate to hold that the appellant is not juvenile. Such Rules read as

under:

“1. (1) These rules may be called the U.P. Panchayat Raj

(Maintenance of Family Registers) Rules, 1970.

2. Form and preparation of family register.- A family register in

form A shall be prepared containing family-wise the names and

particulars of all persons ordinarily residing in the village

pertaining to the Gaon Sabha. Ordinarily one page shall be

allotted to each family in the register. There shall be a separate

section in the register for families belonging to the Scheduled

Castes. The register shall be prepared in Hindi in Devanagri

scrip.

3. General conditions for registration in the register.- Every

person who has been ordinarily resident within the area of the

Gaon Sabha shall be entitled to be registered in the family

register.

Explanation.- A person shall be deemed to be ordinarily resident

in a village if he has been ordinarily residing in such village or is

in possession of a dwelling house therein ready for occupation.

4. Quarterly entries in the family register.- At the beginning of

each quarter commencing from April in each year, the Secretary

of a Gaon Sabha shall make necessary changes in the family

register consequent upon births and deaths, if any occurring in

the previous quarter in each family. Such changes shall be laid

before the next meeting of the Gaon Panchayat for information.

5. Correction of any existing entry.- The Assistant Development

Officer (Panchayat) may on an application made to him in this

behalf order the correction of any existing entry in the family

register and the Secretary of the Gaon Sabha shall then correct

the Register accordingly.

6. Inclusion of names in the Register.- (1) Any person whose

name is not included in the family register may apply to the

Assistant Development Officer (Panchayat) for the inclusion of

13

his name therein.

(2) The Assistant Development Officer (Panchayat) shall, if

satisfied, after such enquiry as he thinks fit that the applicant is

entitled to be registered in the Register, direct that the name of

the applicant be included therein and the Secretary of the Gaon

Sabha shall include the name accordingly.

6A Any person aggrieved by an order made under Rule 5 or Rule

6 may, within 30 days from the date of such order prefer and

appeal to the Sub-Divisional Officer whose decision shall be final.

7. Custody and preservation of the register.-(1) The Secretary of

the Gaon Sabha shall be responsible for the safe custody of the

family register.

(2) Every person shall have a right to inspect the Register and to

get attested copy of any entry or extract therefrom in such

manner and on payment of such fees, if any, as may be specified

in Rule 73 of the U.P. Panchayat Raj Rules.

FORM A

(See RULE 2)

xxx xxx xxx

Note.- In the remarks column the number and date of the order,

if any, by which any name is added or struck off should be given

alongwith the signature of the person making the entry.”

24. A perusal of the Rules shows that one page is allotted to each family

and that any change in the family consequent upon the births and

deaths is required to be incorporated on such page. The changes are

also required to be laid before the next meeting of Gram Panchayat.

Thus, it is evident that such Rules are statutorily framed in pursuance

of an Act. The entries in the register are required to be made by the

officials of the Gram Panchayat as part of their official duty. Neeraj

14

Kumar, Gram Panchayat Officer of Block Barwala was examined

wherein he stated that the entries in the register are made on the basis

of information given by the family members, though he could not

depose as to who had made these entries.

25. Jagpal Singh, father of the appellant, had appeared as a witness to

depose that the appellant was born on 13.5.1993. He deposed that

after the birth of the appellant, a daughter was born on 15.4.1996 and

thereafter a son on 21.9.1997. The High Court relied upon Family

Register (Exhibit R-4) produced by Neeraj Kumar, RW-2, wherein the

year of birth of the appellant was mentioned as 1990 and 1996 as the

year of birth of daughter and 1998 as the year of birth of another son.

The years of birth of the brother and sister of the appellant are almost

the same as deposed by the father. The High Court found that such

document cannot be excluded from consideration for the reason as

such document has been prepared in the ordinary course of business

of the Gram Panchayat.

26. Mr. Bhargava, learned Senior Counsel for the appellant contends that

the family register cannot be made basis of determining the age of the

juvenile under the provisions of the Act and the Rules framed

thereunder. To support such contention, reliance was placed on the

judgments of the Allahabad High Court such as Hare Ram

Chowdhary v. State of U.P.

12; Anil Kumar v. Suchita

13

; Bahadur v.

12 1989 SCC OnLine ALL 438

13 2009 SCC OnLine ALL 671

15

State of U.P.

14; Abdul Hakeem Pardhan and Others v. State of

U.P.

15 and Ram Murti Devi v. State of U.P. and Others

16

.

27. Hare Ram Chowdhary is an order referring the matter to the Full

Bench as to whether the decision of that Court in Pramod Kumar

Manglik v. Smt. Sadhana Rani

17

 is correctly decided. Since no issue

has been finally directed, therefore any observations in the reference

order are not relevant.

28. In Anil Kumar, the dispute related to an election petition regarding

date of birth of a candidate named Suchita. She claimed herself to be

born on 03.07.1984 as against the date of birth entry in the school

records. The family register was relied upon to prove the date of death

of her mother. The learned Single Judge Bench held that the family

register is only a document showing the names of the members of the

family and they are ordinarily resident of a village concerned. It cannot

be conclusive proof either of the date of birth or of death of any family

member mentioned therein.

29. In Bahadur, the accused relied upon entries in the family register to

declare him as juvenile, relying upon U.P. Juvenile Justice (Care and

Protection of Children) Rules, 2004. The High Court rejected the family

register on the ground that the entry produced was on the basis of

register prepared in the year 2000 which was prepared on the basis of

14 2009 SCC OnLine ALL 1757

15 2015 SCC OnLine ALL 5201

16 2021 SCC OnLine ALL 260

17 1989 SCC OnLine ALL 125

16

original register of 1970, but the original register of the year 1970 was

not produced.

30. In Abdul Hakeem Pardhan, the Division Bench of the High Court held

that entries made in the family register were never made in the regular

course of official duties. The family register may be an evidence to

show that the person is living in the family but not an evidence for

ascertaining age.

31. In Ram Murti Devi, the entry in the family register was altered by the

office of District Magistrate. The said issue is not arising for

consideration before this Court. The parties were referred to seek

remedy in terms of Rule 6A of the Family Register Rules.

32. Section 35 of the Evidence Act, 1872 is attracted both in civil and

criminal proceedings. It contemplates that a register maintained in the

ordinary course of business by a public servant in discharge of his

official duty or by any other person in performance of a duty specially

enjoined by the law of the country in which such register is kept would

be a relevant fact. This Court in a judgment reported as Ravinder

Singh Gorkhi v. State of U.P.

18

 held as under:

“23. Section 35 of the Evidence Act would be attracted both in civil

and criminal proceedings. The Evidence Act does not make any

distinction between a civil proceeding and a criminal proceeding.

Unless specifically provided for, in terms of Section 35 of the

Evidence Act, the register maintained in the ordinary course of

business by a public servant in the discharge of his official duty, or

by any other person in performance of a duty specially enjoined by

the law of the country in which, inter alia, such register is kept

18 (2006) 5 SCC 584

17

would be a relevant fact. Section 35, thus, requires the following

conditions to be fulfilled before a document is held to be admissible

thereunder: (i) it should be in the nature of the entry in any public

or official register; (ii) it must state a fact in issue or relevant fact;

(iii) entry must be made either by a public servant in the discharge

of his official duty, or by any person in performance of a duty

specially enjoined by the law of the country; and (iv) all persons

concerned indisputably must have an access thereto.”

33. In Krishna Pal v. State of U.P.,

19

 the learned single judge of

Allahabad High Court held that a family register is a public record in

terms of the Evidence Act inasmuch as the same is prepared under the

statutory provisions of Section 15 (xxiii)(e) of U.P. Panchayat Raj Act

read with Rule 2, Rule 67, Rules 142 to 144 of the U.P. Panchayat Raj

Rules, 1947. The family register is prepared under the Uttar Pradesh

Panchayat Raj (Maintenance of Family Registers) Rules, 1970. It is to be

noted that Form(A) also records the date of death of a family member.

There is yet another Form namely Form (D) which is for registering the

date of birth and death. Both these Forms, therefore, record the date of

death of a person and they are prescribed under the Rules. Needless to

say that the Rules are framed by the State Government and the

registers prescribed for particular purposes are notified under the

Rules. Reference may be made to Section 110 (vii) of the 1947 Act for

the said purpose. The Court held as under:-

“In my opinion, a presumption has to be drawn in respect of the

said public document and it cannot be merely disbelieved if the

Gram Panchayat Adhikari had not been produced to prove it. The

copy of the family register is a public document and a

presumption as to its genuineness is accepted under Section 79 of

the Indian Evidence Act.”

19 2010 SCC OnLine All 695

18

34. In Shiv Patta v. State of U.P.,

20

 it was held that the family register is

maintained in discharge of statutory duties under the U.P. Panchayat

Raj (Maintenance of Family Registers) Rules, 1970. Similarly, date of

death is maintained in discharge of statutory duty under Registration

of the Birth and Deaths Act, 1969 and it is a public document within

the meaning of section 74 of the Evidence Act, 1872. The certified copy

of these documents is admissible in evidence under section 77 of the

Evidence Act and carry presumption of correctness under section 79 of

the Act. High Court held that in the absence of any evidence to prove

that it was incorrect, its correctness is liable to be presumed under

section 79 of the Evidence Act, 1872.

35. Therefore, such Rules are not irrelevant as argued by Mr. Bhargava.

This family register does not only contain date of birth but also keeps

the records of any additions in the family, though the evidentiary value

needs to be examined in each case.

36. We are unable to approve the broad view taken by the High Court in

some of the cases that Family Register is not relevant to determine age

of the family members. It is a question of fact as to how much

evidentiary value is to be attached to the family register, but to say

that it is entirely not relevant would not be the correct enunciation of

law. The register is being maintained in accordance with the rules

framed under a statute. The entries made in the regular course of the

20 2013 SCC OnLine All 14202

19

affairs of the Panchayat would thus be relevant but the extent of such

reliance would be in view of the peculiar facts and circumstances of

each case.

37. In terms of Rule 12(3)(iii) of the Rules, birth certificate issued by

corporation or municipal authority or a panchayat is a relevant

document to prove the juvenility. The family register is not a birth

certificate. Therefore, it would not strictly fall within clause (iii) of Rule

12(3) of the Rules. Even Section 94(2)(ii) of the 2015 Act contemplates

a birth certificate issued by a panchayat to determine the age.

38. The appellant sought to rely upon juvenility only on the basis of school

leaving record in his application filed under Section 7A of the 2000 Act.

Such school record is not reliable and seems to be procured only to

support the plea of juvenility. The appellant has not referred to date of

birth certificate in his application as it was obtained subsequently.

Needless to say, the plea of juvenility has to be raised in a bonafide

and truthful manner. If the reliance is on a document to seek juvenility

which is not reliable or dubious in nature, the appellant cannot be

treated to be juvenile keeping in view that the Act is a beneficial

legislation. As also held in Babloo Pasi, the provisions of the statute

are to be interpreted liberally but the benefit cannot be granted to the

appellant who has approached the Court with untruthful statement.

39. Therefore, we find that the appellant has approached the Court with

unclean hands as the documents relied upon by him are not genuine

20

and trustworthy. Thus, we find that the appellant cannot be given

benefit of juvenility. The view taken by the High Court is a possible

view in law and does not call for any interference in the present

appeal. Accordingly, the appeal is dismissed.

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

(HEMANT GUPTA)

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

(V. RAMASUBRAMANIAN)

NEW DELHI;

FEBRUARY 15, 2022.

21

When the prosecution failed to prove its case beyond all reasonable doubts, court is not allowd to press into service the provisions of Sec.106 of Evidence Act. had not bothered to investigate as to how the incident had taken place. There was no investigation carried out by either of the Investigating Officers as to at which place the deceased was killed and burnt, and how and by whom her burnt body brought in the Chhan. Though, according to the Investigating Officer, it was suspected that the crime was committed by Atar Singh, father of Satye Singh, he was never implicated in the case. There was no recovery and discovery of any incriminating articles made from the accused during the course of investigation and no attempt was made to collect any evidence much less cogent evidence to connect the accused with the alleged crime In the case on hand, the prosecution having failed to prove the basic facts as alleged against the accused, the burden could not be shifted on the accused by pressing into service the provisions contained in section 106 of the Evidence Act. There being no cogent evidence adduced by the prosecution to prove the entire chain of circumstances which may compel the court to arrive at the conclusion that the accused only had committed the alleged crime, the court has no hesitation in holding that the Trial Court and the High Court had committed gross error of law in convicting the accused for the alleged crime, merely on the basis of the suspicion, conjectures and surmises

 When the prosecution failed to prove its case beyond all reasonable doubts, court is not allowd to press into service the provisions of Sec.106 of Evidence Act. 

had not bothered to investigate as to how the incident had taken place. There was no investigation carried out by either of the Investigating Officers as to at which place the deceased was killed and burnt, and how and by whom her burnt body brought in the Chhan. Though, according to the Investigating Officer, it was suspected that the crime was committed by Atar Singh, father of Satye Singh, he was never implicated in the case. There was no recovery and discovery of any incriminating articles made from the accused during the course of investigation and no attempt was made to collect any evidence much less cogent evidence to connect the accused with the alleged crime

 In the case on hand, the prosecution having failed to prove the basic facts as alleged against the accused, the burden could not be shifted on the accused by pressing into service the provisions contained in section 106 of the Evidence Act. There being no cogent evidence adduced by the prosecution to prove the entire chain of circumstances which may compel the court to arrive at the conclusion that the accused only had committed the alleged crime, the court has no hesitation in holding that the Trial Court and the High Court had committed gross error of law in convicting the accused for the alleged crime, merely on the basis of the suspicion, conjectures and surmises

REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2374 of 2014

SATYE SINGH & ANOTHER .... APPELLANT (S)

VERSUS

STATE OF UTTARAKHAND .... RESPONDENT(S)

 J U D G M E N T

BELA M. TRIVEDI, J.

1. The present appeal filed by the appellants-accused

emanates from the Judgment dated 29th August, 2013

passed by the High Court of Uttarakhand at Nainital in

Criminal Jail Appeal No. 64/2010, whereby the High Court

has dismissed the said appeal and upheld the conviction

and sentence awarded by the District & Sessions Judge,

Tehri Garhwal in Sessions Trial No. 22/2009. Both the

appellants-accused were convicted by the Sessions Court

1

for the offence under Section 302 read with Section 34 and

Section 201 of the IPC and were sentenced to undergo life

imprisonment and pay fine of Rs. 20,000/- for the offence

under Section 302 read with Section 34 and to undergo

rigorous imprisonment for a period of six years and pay fine

of Rs.10,000/- for the offence under Section 201 of the IPC.

2. The case in nutshell of the prosecution before the Trial

Court was that Smt. Shashi Devi had married the accusedSatye Singh four years prior to the date of incident which

had taken place any time between the evening of

27.06.2009 to the morning of 28.06.2009. The accusedIndra Devi happened to be the mother of the accused-Satye

Singh. On 28.06.2009 at about 8.40 a.m., Rai Singh (PW-8),

Pradhan of the village-Ger of the accused informed

Virendra Raj (PW-11), Naib Tehsildar, Revenue Police

telephonically that one lady had died due to burns. The

Naib Tehsildar -Virendra Raj (PW-11) therefore reached at

the spot i.e. Chhan (hut) of the accused, after making an

entry of the said information in the G.D. vide Rapat No.

28/42, and saw that the dead body of the deceased was

lying in the room of Chhan in the burnt condition. It was

the further case of the prosecution that Sharad Singh,

2

father of the deceased, on receiving the phone call from the

accused-Satye Singh had also arrived on the spot. The said

Sharad Singh gave a written complaint to the Naib Tehsildar

against the accused-Satye Singh (husband), Indra Devi

(mother-in-law), and Sangeeta Devi (sister-in-law) of the

deceased, which was registered as the Case Crime No.

16/2009 on 28.06.2009 at about 4.50 p.m., at the Revenue

Police Station Bayargaon, District Tehri Garhwal. After the

inquest proceedings were conducted, the dead body was

sealed and taken to the Baushari Hospital for the postmortem. The said Naib Tehsildar after drawing the

panchnama and other proceedings, arrested the accusedSatye Singh. He also recorded the statement of other

witnesses. Thereafter, he having been transferred, the

further investigation was handed over to the Naib Tehsildar,

Gunanand Bahuguna (PW-10). The said Investigating Officer

after completing the investigation filed charge-sheet

against the accused- Satye Singh and Indra Devi showing

the accused Sangeeta Devi as absconding, for the offences

under Sections 302 and 201 of the IPC in the Court of Chief

Judicial Magistrate, Tehri Garhwal.

3

3. The said case being triable by the Court of Sessions was

committed to the Sessions Court, Tehri Garhwal for trial.

Both the accused having denied the charges levelled

against them, the prosecution to prove the charges, led oral

evidence by examining 11 witnesses and also adduced

documentary evidence. After the completion of the

evidence of prosecution, the accused-Satye Singh in his

further statement before the Trial Court recorded under

Section 313 of Cr.P.C. stated inter alia that there was no

custom of dowry in their society and that he did not know

how his wife Shashi died. He further stated that he along

with other people of the village had kept on searching

Shashi for the whole night but she was not found. According

to him, Shashi had possibly committed suicide. The

accused- Indra Devi had stated that since she was the

mother of Satye Singh, she was falsely implicated in the

case. The Trial Court after appreciating the evidence on

record convicted and sentenced both the accused as stated

hereinabove, vide order dated 11.10.2010, which came to

be upheld by the High Court vide the impugned order.

4. The learned Advocate Mr. Shikhil Suri appearing on behalf

of the appellants-accused through Supreme Court Legal

4

Services Committee vehemently submitted that both the

Courts i.e., the Trial Court and the High Court had

committed gross error in convicting the appellants though

there was no cogent evidence adduced by the prosecution

to prove the charges levelled against the appellants.

According to him, neither the manner in which the alleged

incident had taken place was proved nor the place at which

the deceased was allegedly killed and burnt was proved by

the prosecution. He further submitted that since the

appellants happened to be the husband and mother-in-law

of the deceased, they were arrested and convicted, merely

on the basis of suspicion, conjectures and surmises. Taking

the court to the evidence of witnesses recorded during the

course of trial, he submitted that the case was based on

the circumstantial evidence as there was no eye witness to

the alleged incident and the prosecution had failed to prove

the entire chain of circumstances leading to the guilt of the

accused.

5. However, the learned Advocate Mr. Krishnam Mishra

appearing for the respondent-State of Uttarakhand

submitted that there being concurrent findings of the facts

recorded by the two courts, this Court exercising limited

5

jurisdiction under Article 136 of the Constitution of India

may not re-appreciate the evidence and come to a different

conclusion. Mr. Mishra further submitted that the

prosecution had examined the witnesses to prove that

there was a harassment to the deceased by the accused

and on the previous day of the incident also a quarrel had

taken place between the deceased and the accused, which

had resulted into the deceased Shashi leaving the house.

According to him, the accused had tried to mislead the

Investigating Officer by propounding the story that Shashi

had committed suicide, however, from the evidence of the

doctor viz. Sanjay Kavdwal (PW-9) and the injuries

mentioned in the post-mortem report, it was duly proved

that the injuries found on the dead body of Shashi were

ante-mortem, and her death was caused due to

Haemorrhage and shock on account of ante-mortem

injuries. He, pressing into service Section 106 of the

Evidence Act, submitted that there was no explanation

given by the accused in their further statement as to why

did Shashi leave their home the previous day and what

6

they did they do for the whole night, when Shashi was not

found.

6. Now it may be stated at the outset that undeniably the

entire case of the prosecution hinged on circumstantial

evidence as there was no eye witness to the alleged

incident. Though the accused had tried to propound the

story of the deceased having committed suicide, both the

courts had rightly not accepted the said story, in view of

the clinching evidence of the Dr. Sanjay Kavdwal, who had

carried out the post-mortem of the deceased and recorded

the injuries found on the dead body of the deceased, which

were ante-mortem in nature. The ante mortem injuries

recorded in the post-mortem report were as under:

(i) Fracture occipital bone

3CMx3CM

(ii) Fracture left humoorus

(compound) lower

(iii) Abdomen was burst and

intestine was protruding out,

10CM x 4CM

(iv) Entire body had blackened,

charred, peeling, scaring like

parchment and the muscles

were visible. Hairs of the

head had burnt.

7

The said doctor had opined that the cause of death was

Haemorrhage and shock due to ante mortem injuries. The

said doctor was cross-examined at length to prove that the

injuries were not ante mortem and were due to burning

only, however, the doctor had categorically denied the

same and had further explained as to how and when the

blisters would develop on the body on account of burning.

From the said evidence of the doctor, there remains no

shadow of doubt that the deceased Shashi had died a

homicidal death.

7. This takes the Court to the next issue as to how and who

caused the death of Shashi. The prosecution in order to

prove the charges levelled against the accused had

examined 11 witnesses. However, none of witnesses had

any knowledge about the alleged incident. PW-1 viz. Jontara

Devi, aunt of the deceased had deposed, inter alia, that on

27th at about 11.00 o’clock Satye Singh had made a phone

call to her to enquire whether the Shashi had come to her

house, and that on the next day she had come to know that

Shashi was burnt to death. In the cross-examination, she

had admitted that the accused Satye Singh or all his family

members had never made any demand of dowry in her

8

presence, nor any assault was made by them in her

presence.

8. The father of the deceased – Sharad Singh (PW-2) of course

had stated in his evidence that the accused i.e., husband of

the deceased and his family members used to harass his

daughter- Shashi for dowry and, therefore, many a times

Shashi used to come his house running. He had also stated

that one month prior to the incident in question, Shashi had

come to his house and told him that she was being

assaulted and abused by the accused for the dowry. As

regards the incident in question, he had stated that Satye

Singh had called him in the morning at about 10-11 o’clock

to inform him that Shashi had committed suicide by setting

herself ablaze. He therefore along with villagers had gone to

the Chhan of the accused and saw that dead body of Shashi

was lying there in burnt condition. He had given the written

complaint to the police with regard to the incident in

question. In the cross examination he had admitted that he

had never seen any injuries on her body nor he had lodged

any complaint about the alleged harassment by the

accused. He had further stated that the Chhan i.e. cowshed

of the accused was situated at the distance of half an hour

9

of the house of the accused at village Ger and that there

was a forest of Baanj, Buransh in between the village and

the Chhan. He had also stated that the father of the Satye

Singh was deaf and dumb. He also admitted that on the

previous evening when Jontara Devi informed him about the

phone call from Satye Singh enquiring about Shashi, he did

not go to the village of the accused, thinking that they keep

on quarrelling like that. He also admitted that Satye Singh

and all his family members were present when he reached

at the spot i.e., the Chhan. He had admitted that he did not

know as to how his daughter was burnt, however, had

denied the suggestion that Shashi had caught fire from the

Chulla (hearth). He also denied that there was no

harassment by the accused to his daughter.

9. PW -3 Bhagdeyi Devi, mother of the deceased, PW-5

(Bharat Singh) uncle of the deceased and other villagers

PW-4 (Bhagat Singh), PW-6 (Balbir Singh) and PW-7 (Gabbar

Singh) were examined by the prosecution, however, none

had any knowledge as to how, when and where the

deceased was killed and burnt.

10. It is also very pertinent to note that the entire investigation

carried out by the Investigating Officers Gunanand

10

Bahuguna (PW -10) and Virendra Raj (PW-11) was in a very

cursory and shoddy manner. On receiving the information

from Shri Rai Singh, Pradhan of the village, the Naib

Tehsildar (Virendra Raj) had reached to the spot i.e the

Chhan and registered the complaint against the accused

Satye Singh, Indra Devi and Sangeeta Devi, at the instance

of the complainant Sharad Singh, however, had not

bothered to investigate as to how the incident had taken

place. There was no investigation carried out by either of

the Investigating Officers as to at which place the deceased

was killed and burnt, and how and by whom her burnt body

brought in the Chhan. Though, according to the

Investigating Officer, it was suspected that the crime was

committed by Atar Singh, father of Satye Singh, he was

never implicated in the case. There was no recovery and

discovery of any incriminating articles made from the

accused during the course of investigation and no attempt

was made to collect any evidence much less cogent

evidence to connect the accused with the alleged crime.

11. On the totality of circumstances and evidence on record, at

the most it could be said from the evidence of the parents

of the deceased that there was harassment by the accused

11

to the deceased, though no charge under section 498A of

IPC was framed by the trial court against the accused. It

could be further inferred from the evidence on record that

the deceased Shashi had left the house on the previous

evening of the alleged incident and that she was not found

during the whole night, nonetheless such circumstance

itself could not be said to be sufficient proof to come to a

conclusion that accused had murdered and burnt Shashi as

alleged. It is settled position of law that circumstances

howsoever strong cannot take place of proof and that the

guilt of the accused have to be proved by the prosecution

beyond reasonable doubt. At this juncture, let us

regurgitate, the golden principles laid down by this Court in

Sharad Birdhichand Sarda vs. State of Mahashtra

reported in 1984 (4) SCC 116. This court while drawing the

distinction between “must be” and “may be” observed as

under in para 153:

“153. A close analysis of this

decision would show that the

following conditions must be

fulfilled before a case against an

accused can be said to be fully

established:

12

(1) the circumstances from which

the conclusion of guilt is to be

drawn should be fully

established.

It may be noted here that this

Court indicated that the

circumstances concerned “must or

should” and not “may be”

established. There is not only a

grammatical but a legal distinction

between “may be proved” and

“must be or should be proved” as

was held by this Court in Shivaji

Sahabrao Bobade v. State of

Maharashtra [(1973) 2 SCC 793 :

1973 SCC (Cri) 1033 : 1973 Crl LJ

1783] where the observations were

made.

Certainly, it is a primary principle

that the accused must be and not

merely may be guilty before a

court can convict and the mental

distance between ‘may be’ and

‘must be’ is long and divides vague

conjectures from sure conclusions.

(2) the facts so established should

be consistent only with the

hypothesis of the guilt of the

accused, that is to say, they should

not be explainable on any other

hypothesis except that the accused

is guilty,

(3) the circumstances should be of

a conclusive nature and tendency,

13

(4) they should exclude every

possible hypothesis except the one

to be proved, and

(5) there must be a chain of

evidence so complete as not to

leave any reasonable ground for

the conclusion consistent with the

innocence of the accused and must

show that in all human probability

the act must have been done by

the accused.”

12. It was further observed in Para-158 to 160 as under:

“158. It may be necessary here to

notice a very forceful argument

submitted by the Additional

Solicitor General relying on a

decision of this Court

in Deonandan Mishra v. State of

Bihar [AIR 1955 SC 801 : (1955) 2

SCR 570, 582 : 1955 Cri LJ 1647]

to supplement his argument that

if the defence case is false it

would constitute an additional

link so as to fortify the

prosecution case. With due

respect to the learned Additional

Solicitor-General we are unable to

agree with the interpretation

given by him of the aforesaid

case, the relevant portion of

which may be extracted thus:

“But in a case like this where the

various links as stated above have

been satisfactorily made out and

the circumstances point to the

appellant as the probable

assailant, with reasonable

14

definiteness and in proximity to

the deceased as regards time and

situation,. . . such absence of

explanation or false explanation

would itself be an additional link

which completes the chain.”

159. It will be seen that this Court

while taking into account the

absence of explanation or a false

explanation did hold that it will

amount to be an additional link to

complete the chain but these

observations must be read in the

light of what this Court said earlier

viz. before a false explanation can

be used as additional link, the

following essential conditions must

be satisfied:

(1) various links in the chain of

evidence led by the prosecution

have been satisfactorily proved,

(2) the said circumstance points to

the guilt of the accused with

reasonable definiteness, and

(3) the circumstance is in proximity to

the time and situation.

160. If these conditions are fulfilled

only then a court can use a false

explanation or a false defence as

an additional link to lend an

assurance to the court and not

otherwise. On the facts and

circumstances of the present case,

this does not appear to be such a

case. This aspect of the matter was

examined in Shankarlal

case [(1981) 2 SCC 35, 39 : 1981

SCC (Cri) 315, 318-19 : (1981) 2

SCR 384, 390 : 1981 Cri LJ 325]

15

where this Court observed thus :

[SCC para 30, p. 43 : SCC (Cri) p.

322]’’

“Besides, falsity of defence cannot

take the place of proof of facts

which the prosecution has to

establish in order to succeed. A

false plea can at best be

considered as an additional

circumstances, if other

circumstances point unfailingly to

the guilt of the accused.”

13. The said principles have been restated in catena of

decisions. In State of U.P. vs. Ashok Kumar Srivastava

(1992) 2 SCC 86, it has been observed in para 9 that:

’’9. This Court has, time out of

number, observed that while

appreciating circumstantial

evidence the Court must adopt a

very cautious approach and should

record a conviction only if all the

links in the chain are complete

pointing to the guilt of the accused

and every hypothesis of innocence

is capable of being negatived on

evidence. Great care must be

taken in evaluating circumstantial

evidence and if the evidence relied

on is reasonably capable of two

inferences, the one in favour of the

accused must be accepted. The

circumstance relied upon must be

found to have been fully

established and the cumulative

effect of all the facts so

established must be consistent

16

only with the hypothesis of guilt.

But this is not to say that the

prosecution must meet any and

every hypothesis put forward by

the accused however far-fetched

and fanciful it might be. Nor does

it mean that prosecution evidence

must be rejected on the slightest

doubt because the law permits

rejection if the doubt is reasonable

and not otherwise.’’

14. Again in Majendran Langeswaran vs. State (NCT of

Delhi) & Anr. (2013) 7 SCC 192, this court having found the

material relied upon by the prosecution inconsistent and the

infirmities in the case of the prosecution, considered number

of earlier decisions, and held that the conviction can be

based solely on circumstantial evidence but it should be

tested on the touchstone of law relating to the circumstantial

evidence that all circumstances must lead to the conclusion

that the accused is the only one who has committed the

crime and none else.

15. Applying the said principles to the facts of the present case,

the Court is of the opinion that the prosecution had

miserably failed to prove the entire chain of circumstances

which would unerringly conclude that alleged act was

committed by the accused only and none else. Reliance

17

placed by learned advocate Mr. Mishra for the State on

Section 106 of the Evidence Act is also misplaced, inasmuch

as Section 106 is not intended to relieve the prosecution

from discharging its duty to prove the guilt of the accused.

In Shambu Nath Mehra vs. State of Ajmer, AIR (1956)

SC 404, this court had aptly explained the scope of Section

106 of the Evidence Act in criminal trial. It was held in para

9:

“9. This lays down the general rule

that in a criminal case the burden

of proof is on the prosecution and

Section 106 is certainly not

intended to relieve it of that duty.

On the contrary, it is designed to

meet certain exceptional cases in

which it would be impossible, or at

any rate disproportionately

difficult, for the prosecution to

establish facts which are

“especially” within the knowledge

of the accused and which he could

prove without difficulty or

inconvenience. The word

“especially” stresses that. It

means facts that are preeminently or exceptionally within

his knowledge. If the section were

to be interpreted otherwise, it

would lead to the very startling

conclusion that in a murder case

the burden lies on the accused to

prove that he did not commit the

murder because who could know

better than he whether he did or

18

did not. It is evident that that

cannot be the intention and the

Privy Council has twice refused to

construe this section, as

reproduced in certain other Acts

outside India, to mean that the

burden lies on an accused person

to show that he did not commit the

crime for which he is tried. These

cases are Attygalle v. Emperor [AIR

1936 PC 169]

and Seneviratne v. R. [(1936) 3 All

ER 36, 49]”

16. In the case on hand, the prosecution having failed to prove

the basic facts as alleged against the accused, the burden

could not be shifted on the accused by pressing into service

the provisions contained in section 106 of the Evidence Act.

There being no cogent evidence adduced by the

prosecution to prove the entire chain of circumstances

which may compel the court to arrive at the conclusion that

the accused only had committed the alleged crime, the

court has no hesitation in holding that the Trial Court and

the High Court had committed gross error of law in

convicting the accused for the alleged crime, merely on the

basis of the suspicion, conjectures and surmises.

17. In that view of the matter, the impugned judgments

deserve to be quashed and set aside and are hereby set

19

aside accordingly. The accused are acquitted from the

charges levelled against them and are directed to be set

free forthwith.

18. The appeal stands allowed accordingly.

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

 [SANJIV KHANNA]

 ..............................J.

[BELA M. TRIVEDI]

NEW DELHI

15.02.2022

20

Whether the High Court has gone beyond the scope and ambit of the proceedings before it. ? When the challenge was for foreiting the 10% of deposited amount by authorised officer - granting relief providing time to deposite balance sale amount is nothing but travelling beyond scope of relief asked for and as such liable to be set aside.

 Whether  the High Court  has gone beyond the scope and ambit of the proceedings before it. ?

When the challenge was for foreiting the 10% of deposited amount by authorised officer - granting relief providing time to deposite balance sale amount is nothing but travelling beyond scope of relief asked for and as such liable to be set aside.

 the auction purchaser moved   an   application before   the   Recovery   Officer   seeking   some   clarity   in   the matter.   The same was replied to by the Bank.   However, thereafter the Recovery Officer dismissed the application of the   petitioner   on   28.11.2019   and   forfeited   10%   of   the amount deposited by him.  Aggrieved   by   the   order   of   the   Recovery   Officer, Respondent   No.1   herein   had   preferred   an   appeal   being Appeal No.21 of 2019 before DRT­II, The said appeal came to be dismissed by the DRT­II. Thereafter Respondent No.1 herein ­ original writ petitioner preferred an appeal bearing No.91 2 of 2019 before the DRAT challenging the order of DRT dated 18.03.2020.  The DRAT, however did not grant any interim relief to him and consequently Respondent ­ Bank herein sought to put the property to auction on 10.11.2021. The application   to   seek   interim   relief   from   the   DRAT   was renotified on 17.11.2021 i.e. after the date of the proposed auction and therefore apprehending that his interim relief application   would   become   infructuous.Though the appeal before the DRAT was pending and what was challenged before the High Court was with regard to not granting any interim relief against the auction  The High Court has passed the following order: “13. In the aforesaid circumstances, we grant one opportunity to the petitioner to deposit the balance amount along with damages quantified at Rs.5 Lakhs, within the next two weeks. The deposit shall be made with the respondent bank within the aforesaid period. In case, the deposit is made in these terms, the respondent bank 3 shall proceed to deliver the possession of the properties to the petitioner. The Recovery Officer is directed to release the 25% of the amount deposited by the petitioner with him, along with up to date interest, within the next 10 days to the respondent Bank, and to confirm the sale. The Recovery Officer shall take all steps under the law to perfect the title of the petitioner.

The High Court has not properly appreciated the fact that what was challenged before it was regarding non­grant 4 of any interim relief pending the appeal before the DRAT. Main   appeal  was   yet   to   be   considered  by  the   DRAT  on merits.  From the impugned judgment and order passed by the High Court, it appears that the High Court has decided and disposed of the writ petition as if the High Court was considering   the   final   decision   of   the   DRAT.     The   order passed  by   the   DRT  confirming   the   order   passed  by   the Recovery Officer forfeiting 10% amount deposited by the auction   purchaser   was   yet   to   be   decided   by   the   DRAT. Therefore, the High Court as such has gone beyond the scope and ambit of the proceedings before it

  original   borrower   has   preferred   the present Civil Appeal Nos. 1302­1303 of 2022.

MCS Rules = Whether the order - set aside the auction sale in respect of the lands in question and also ordered that the Sale Certificate the auction purchaser stands cancelled, are valid. ?

 Whether the order - set aside the auction sale in respect of the lands in question and also ordered that the Sale Certificate the auction purchaser stands cancelled, are valid. ?

 If the contention/submission on behalf of the borrower is accepted that second proviso to Rule 107(11)(f) does not state that the fresh proclamation is not necessary if there is a stay of auction by higher authorities/Courts, in that case, every dishonest borrower who wants to scuttle or delay the auction/sale will approach the Court/appropriate authority at the eleventh hour and obtain stay of the auction which may continue for more than seven days and he would then contend that as more than seven days have passed, fresh proclamation has to be issued. The aforesaid position cannot be accepted.

Now insofar as the finding recorded by the High Court that the auction was conducted/held within a period of thirty days from the date of proclamation and therefore there is a breach of Rule 107(11)(f) is concerned, it appears that the High Court has considered 09.09.2010 as the date of proclamation. However, it is to be noted that 09.09.2010 was the date on which the tender notice indicating the date of auction/sale was issued. The same was published in the daily newspaper on 14.09.2010 fixing the date of auction/sale on 28.09.2010. It was not a proclamation. Prior thereto, the proclamation/public notice dated 20.02.2010 was published in the daily newspaper ‘Sakal’ on 22.02.2010, 23.02.2010 and 24.02.2010. Even thereafter also, Public Advertisement dated 26.05.2010, which also can be said to be a proclamation as per Rule 107(11)(f) of the MCS Rules, 1961, was issued. Therefore, the High Court is factually incorrect in concluding that the auction sale was in breach of Rule 107(11)(f) of the MCS Rules, 1961.

The District Deputy Registrar approved the said proposal which was received on 29.12.2010 and within a period of fifteen days from the date of such approval, the auction purchaser deposited the remaining 85% of the amount. Therefore, it cannot be said that there was any breach of Rule 107(11)(g) &(h) of the MCS Rules, 1961 as observed and held by the High Court

He even did not raise any objection before the Recovery Officer about the alleged material irregularity as required under Rule 107(14). Instead, he challenged the auction proceedings before the Divisional Joint Registrar by way of revision application No. 11/2011 26 under Section 154 of the MCS Act, 1960, which even as observed by the High Court was not competent at the instance of the borrower. From the aforesaid, it is clear that at every stage without paying a single rupee due and payable, the borrower tried to stall the auction/sale proceedings.

In view of the above discussion and for the reasons stated above, the present appeals succeed. The impugned judgment and order dated 30.07.2021 passed by the High Court of Bombay, Bench at Aurangabad in Writ Petition No. 570/2012 is hereby quashed and set aside and consequently Writ Petition No. 570/2012 filed by the borrowerrespondent no.1 herein stands dismissed. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 818 OF 2022

Deenadayal Nagari Sahakari Bank Ltd. & Another ..Appellants

Versus

Munjaji and others ..Respondents

WITH

CIVIL APPEAL NO. 819 OF 2022

Ratnakar s/o Manikrao Gutte ..Appellant

Versus

Munjaji 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 30.07.2021 passed by the High Court of Judicature at

1

Bombay, Bench at Aurangabad in Writ Petition No. 570 of 2012, by

which the High Court has allowed the said writ petition preferred by

respondent no.1 herein and has set aside the auction sale in respect of

the lands in question and also ordered that the Sale Certificate dated

19.01.2011 executed by the appellant-bank in Civil Appeal No. 818/2022

in favour of the auction purchaser stands cancelled, both, the Bank as

well as the auction purchaser have preferred the present appeals.

2. The facts leading to the present appeals in a nutshell are as under:

One Vaishnavi Hatcheries Company Limited, of which respondent

no.1 herein is the Director (hereinafter referred to as the ‘borrower’),

borrowed loan from the appellant-bank and one Vaidanath Nagari

Sahakari Bank. As a security to the said loan, four properties, i.e.,

survey nos. 102, 440, 437 & 439 were mortgaged. Property survey No.

439 was mortgaged with Vaidanath Bank, property survey No. 437 was

mortgaged with the appellant-bank and property survey Nos.440 & 102

were jointly mortgaged with the appellant-bank and Vaidanath Bank.

2.1 That the borrower defaulted in payment of the appellant-bank and

Vaidanath Bank in the year 2010. Both the banks initiated separate

recovery proceedings against respondent no.1 and the borrower. A

Recovery Certificate dated 6.2.2010 was issued in favour of the

appellant-bank under Section 101 of Maharashtra Co-operative

2

Societies Act, 1960 (hereinafter referred to as the ‘MCS Act, 1960’).

According to the appellant-bank, a proclamation was published in the

daily newspaper ‘Sakal’ on 22.02.2010 as well as on 23.02.2020,

followed by the publication in the daily newspaper ‘Sakal’ on 24.02.2010.

According to the appellant-bank, a proclamation as per Rule 107(11) of

the Maharashtra Co-operative Societies Rules, 1961 (hereinafter

referred to as the ‘MCS Rules, 1961’) was issued on 26.05.2010 giving

30 days’ time to respondent no.1 to pay the amount.

2.2 That the Deputy Joint Registrar, Co-operative Societies fixed the

upset price at Rs.98,10,000/- vide communication dated 26.07.2010.

Vaidanath Bank also initiated the process of auction of the property in

survey no. 439 in terms of the recovery certificate issued in its favour.

The said proceedings so far as the Vaidanath Bank is concerned had

attained finality. Upset price fixed by the Deputy Joint Registrar, Cooperative Societies was challenged by respondent no.1 by way of

Revision Petition No. 58/2010 before the Divisional Joint Registrar.

2.3 The appellant-bank issued a tender notice to sell the mortgaged

properties on 9.9.2010, which was published in the daily newspaper on

14.09.2010. On the date fixed for submission of tender, the Divisional

Joint Registrar, Co-operative Societies granted stay of the auction

proceedings in Revision Application No. 58/2010 filed by respondent

3

no.1 herein. However, subsequently, the Divisional Joint Registrar

dismissed the said Revision Application vide order dated 23.11.2010.

On dismissal of the revision application and vacating the stay, bids were

opened on 29.11.2010. The appellant in Civil Appeal No. 819/2022 –

Ratnakar Gutte was found to be the highest bidder and he offered the

bid of Rs.1,26,00,000/-. The auction purchaser deposited 15% of the

said amount on the same day, i.e., on 29.11.2010. Thereafter, an

application was made to the District Deputy Registrar for seeking

approval to accept the balance 85% of the amount from the auction

purchaser which according to the bank was required as per the circular

issued by the Co-operative Commissioner & Registrar dated 23.07.2004.

The approval was received from the District Deputy Registrar on

29.12.2010. Immediately on receipt of the approval, the auction

purchaser deposited the remaining 85% of the amount on 12.01.2011,

which was within 15 days from the date of approval.

2.4 A Sale Certificate was issued in favour of the auction purchaser on

17.01.2011 and the sale deed was also executed in favour of the auction

purchaser on 19.01.2011. No further steps were taken by respondent

no.1 immediately. He also did not come forward to deposit 5% of the

amount equal to the purchase money within 30 days from the date of the

sale so as to seek setting aside of the sale in terms of Rule 107(13) of

4

the MCS Rules, 1961. No objection was raised before the Recovery

Officer about any irregularity or fraud as required under Rule 107(14) of

the MCS Rules, 1961. It appears that the officers of the bank went to

take possession of the property, they were attacked and therefore the

officers of the bank lodged an FIR on 24.02.2011 for an attack on them

while acquiring possession of the property.

2.5 Thereafter, respondent no.1 challenged the auction proceedings

before the Divisional Joint Registrar by way of Revision Application No.

11/2011 under section 154 of the MCS Act, 1960. Respondent no.1 filed

an FIR being FIR No. 138/2011 alleging that the mortgaged deed of the

property and sale deed with respect to land survey no. 437 (to the extent

of 34R) and land survey no. 440(to the extent of 72R) are illegal. Vide

order dated 13.04.2011, the Divisional Joint Registrar dismissed

Revision Application No. 11/2011 filed by respondent no.1 herein.

Respondent no.1 filed Writ Petition No. 570/2012 before the High Court

challenging order dated 13.04.2011 in Revision Application No. 11/2011

passed by the Divisional Joint Registrar upholding the auction

proceedings. Respondent no.1 also challenged Recovery Certificate

dated 6.2.2010 before the High Court by filing two writ petitions, i.e., Writ

Petition No. 4618/2011 & Writ Petition No. 9282/2011. Both, Writ

Petition No. 4618/2011 & Writ Petition No. 9282/2011 came to be

5

dismissed by the High Court, vide order dated 20.02.2012. By judgment

and order dated 23.09.2013, the High Court quashed the criminal

proceedings initiated by respondent no.1 against the officers of the bank

and others concerned vide FIR No. 138/2011.

2.6 Feeling aggrieved and dissatisfied with the order passed by the

learned Single Judge in Writ Petition No. 4618/2011, respondent no.1

preferred Letters Patent Appeal No. 130/2012. The same came up for

hearing before the Division Bench on 5.3.2014. Respondent no.1

withdrew the said Letters Patent Appeal and therefore the said LPA No.

130/2012 came to be dismissed as withdrawn.

2.7 By the impugned judgment and order dated 30.07.2021, the High

Court has allowed Writ Petition No. 570/2012 challenging order dated

13.04.2011 passed by the Divisional Joint Registrar in Revision

Application No. 11/2011 upholding the auction proceedings and

consequently has set aside the auction sale in respect of lands survey

nos. 440, 437 and 102 dated 29.11.2010. By the impugned judgment

and order, the High Court has also set aside the Sale Certificate in

favour of the auction purchaser dated 19.01.2011. The High Court has

directed the appellant-bank to refund the sale price to the auction

purchaser along with interest @ 10% per annum from the date of deposit

till payment. From the impugned judgment and order passed by the

6

High Court, it appears that the High Court has allowed the writ petition

and set aside the auction sale on the ground that there was a noncompliance of mandatory provisions of Rule 107(11) (e) (f) and Rule

107(11)(h) of the MCS Rules, 1961.

2.8 Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court, the bank as well as the auction

purchaser both have preferred the present appeals.

 3. Shri Sudhanshu S. Choudhari, learned counsel appearing on

behalf of the appellants in Civil Appeal No. 818/2022 has vehemently

submitted that, as such, respondent no.1 has not deposited even a

farthing towards the loan amount since 2010. It is submitted that he

even did not deposit the amount in terms of the proclamation dated

26.05.2010, nor did he deposit the 5% amount in terms of Rule 107(13)

of the MCS Rules, 1961 for seeking setting aside the auction/sale.

3.1 It is contended that the High Court has not properly appreciated

the fact that in the earlier two rounds of litigation, respondent no.1 –

borrower failed, i.e., in his challenge to the recovery proceedings and

challenge to the base price. It is submitted that this is the third attempt

to stall the recovery of public money.

3.2 It is further urged that as such the High Court has not properly

appreciated and/or considered that the properties at Survey Nos. 440 &

7

102 were jointly mortgaged to the appellant-bank and the Vaidanath

Bank and were inseparable. It is submitted that out of the auction

amount, Rs. 47 lakhs were paid to Vaidanath Bank and despite the

above fact, Vaidanath Bank was not made party before the High Court.

It is submitted that in writ petition No. 570/2012, as such, there was no

challenge to the auction sale of properties bearing survey nos. 102 &

440, jointly mortgaged with the appellant-bank and the Vaidanath Bank.

3.3 It is further contended by learned counsel appearing on behalf of

the appellant-bank that once having held by the High Court that since

respondent no.1 did not exercise the right under Rule 107(13), Revision

Application No. 11/2011 under Section 154 of the MCS Act, 1960 was

not maintainable, thereafter it was not open for the High Court to pass

the impugned judgment and order in the writ petition in which the order

passed in the revision application was under challenge.

3.4 It is submitted that in the present case, Vaishnavi Hatcheries was

the borrower and respondent no.1 is the only Director of the borrower. It

is submitted that the borrower – Vaishnavi Hatcheries has accepted the

auction as it has not challenged the same. It is therefore submitted that

challenge to the auction/sale by respondent no.1 as a director in his

individual capacity was not maintainable.

8

3.5 It is further contended that as such respondent no.1 did not raise

any objection before the Recovery Officer in terms of Rule 107(14) of the

MCS Rules, 1961. That in view of the proviso to the said Rule, no sale

could be set aside on the ground of irregularity, mistake or fraud unless

the Recovery Officer is satisfied that the applicant has sustained

substantial injury due to it. It is submitted that in fact the order of the

High Court would cause substantial injury to respondent no.1 as he will

have to pay interest at the rate of 15% per annum from the date of

default, i.e., from 2010 till date. It is submitted that the amount if

calculated at present would come to Rs. 3,54,58,836/- and after addition

of 10% to be paid to the auction purchaser, the amount would be

Rs.6,15,05,589/-.

3.6 It is further submitted that the High Court has not properly

considered the conduct on the part of respondent no.1. This is because

respondent no.1 has filed several proceedings in several Courts to stall

the recovery of the outstanding debt. It is submitted that at this stage, to

initiate a fresh process would cause substantial injury to the appellant as

the life of the machinery auctioned was only three years and the

appellant will not be able to recover the amount which is public money.

It is submitted that the High Court has even erroneously asked the

appellant-bank to repay the sale price to the auction purchaser along

9

with interest at the rate of 10% per annum from the date of deposit till

payment, which is in the nature of a penalty against the bank.

3.7 It is further urged that even otherwise, on facts also, the High

Court has erred in observing and holding that there was a breach of

Rules 107(11)(e), (f) & (h) of the MCS Rules, 1961. That the High Court

has committed a grave error in observing and holding that in terms of

Rule 107(11)(e) and (f), there was no gap of thirty days between the

proclamation and the sale. It is stated that the date of proclamation was

20.02.2010 and 26.05.2010 and the date of auction was 28.09.2020.

Therefore, there was a clear gap of thirty days between the two. It is

submitted that the High Court has erroneously taken the date of

publication of notice as the date of proclamation.

3.8 It is further submitted that the High Court has also committed an

error in holding that there was a breach of Rule 107(11)(f) by not issuing

a fresh proclamation. That the High Court has erred in holding that in

terms of Rule 107(11)(f), a fresh proclamation was required to be issued

since the auction was adjourned for more than seven days. It is urged

that the High Court has not considered that in terms of proviso to Rule

107(11)(f), only where the Recovery Officer or the Sale Officer in his

discretion adjourns the sale for a period longer than seven days, a fresh

proclamation was required to be issued. That in the instant case, there

10

was no such discretion exercised either by the Recovery Officer or the

Sale Officer. It is submitted that the sale was required to be adjourned

as there was a stay of the auction granted on the very date fixed for it by

the Divisional Joint Registrar vide order dated 28.09.2010 at the instance

of respondent no.1, which came to be vacated on 23.11.2010 and

thereafter within a period of seven days the auction was held.

3.9 Making the above submissions, it is prayed to allow the present

appeal and to quash and set aside the impugned judgment and order

passed by the High Court.

4. Shri Nishant Katneshwarkar, learned counsel appearing on behalf

of the auction purchaser, while adopting the submissions made on behalf

of the appellant-bank, has further submitted that the High Court has

erred in holding that the auction purchaser did not deposit the balance

85% amount within the stipulated time. It is submitted that as per

circular dated 23.07.2004 issued by the Cooperative Commissioner &

Registrar, Cooperative Societies, all the proposals for sale confirmation

were required to be submitted to the Assistant Registrar/District Deputy

Registrar. It is submitted that in the present case the bids were opened

and tender was allotted to the auction purchaser as he was the highest

bidder and he deposited 15% of the amount on 29.11.2010. That an

application was made to the District Deputy Registrar for seeking his

11

approval and to accept the balance 85% of the amount. That the same

was required as per circular dated 23.07.2004. That the approval was

received from the District Deputy Registrar on 29.12.2010 and

immediately thereafter within a period of 15 days, i.e., on 12.01.2011,

the auction purchaser had deposited the remaining 85% of the amount

and thereafter the sale certificate came to be issued in favour of the

auction purchaser on 17.01.2011. It is submitted that therefore the High

Court has erred in observing that the auction purchaser did not deposit

the 85% of the balance amount of sale consideration within the

stipulated time provided under the Rules. It is urged that therefore the

High Court has committed a grave error in setting aside the entire sale

which was held in 2010/2011.

5. The present appeals are vehemently opposed by Shri Santosh

Paul, learned Senior Advocate appearing on behalf of respondent no.1.

It is submitted that in the present case, the High Court has rightly held

that the auction sale was in contravention of Rules 107(11)(e), 107(11)

(f), 107(11)(g) & 107(11)(h) of the MCS Rules, 1961.

5.1 It is submitted that according to Rule 107(11)(e) of the MCS Rules,

1961, the proclamation was to be published thirty days before the date

for sale. But in the instant case, no such proclamation was made for the

auction sale held on 29.11.2010. It is submitted that the proclamation

12

was issued on 09.09.2010 and was published on 14.09.2010 for opening

of tender on 28.09.2010, which was within the period of thirty days from

the date of proclamation. It is submitted, therefore the High Court has

rightly held that the auction was in breach of Rule 107(11)(e) of the MCS

Rules, 1961.

5.2 It is further submitted that as per second proviso to Rule 107 (11)

(f) of the MCS rules, if, for any reason, the sale has been postponed

beyond seven days, a fresh proclamation is required to be issued. It is

contended that in the present case, the Divisional Registrar stayed the

auction and the proclamation of auction by order dated 28.09.2010 and

the revision was dismissed on 23.11.2010. The auction was scheduled

to be held on 28.09.2010 but the auction was actually held after 61 days,

i.e., on 29.11.2010 without a fresh proclamation as mandated by second

proviso to Rule 107(11)(f) of the Rules. It is submitted that second

proviso to Rule 107(11)(f) clearly stipulates the mandate of issuing a

fresh proclamation. It does not state that the fresh proclamation is not

necessary if there is a stay by higher authorities/Courts. It is contended

that in the absence of the fresh proclamation, auction held on

29.11.2010 is a nullity.

5.3 It is submitted that the underlying purpose of issuing a fresh

proclamation before an auction is to obtain the best financial return for

13

the property and to oversee a free and fair competition amongst buyers.

It is submitted that the High Court is right in setting aside the auction

sale which was in breach of Rule 107(11)(f) of the Rules.

5.4 It is further submitted that in the present case the property in

question was sold for an amount of Rs.1,26,00,000/- and the very

purchaser valued the same property in four months at Rs.4,91,00,000/-.

It is submitted that in the absence of a fresh proclamation only three

related parties participated in the auction and therefore the property in

question was sold at a very low price.

5.5 It is further submitted that as per Rules 107(11) (g) & (h), it is

mandatory that the auction purchaser deposits 15% of the price

immediately and that he also deposits the remainder 85% within a period

of fifteen days from the date of sale. It is submitted that in the present

case, the auction purchaser deposited 15% of the sale price on

29.11.2010 and the remaining amount was paid after 44 days on

12.01.2011. This is a clear breach of Rules 107(11) (g) & (h). It is

submitted that the High Court is right in setting aside the sale in favour of

the auction purchaser.

5.6 It is submitted that in the case of Shilpa Shares and Securities and

others vs. National Cooperative Bank Limited, reported in (2007) 12

SCC 165 wherein the very same Rules 107(11) (g) &(h) were under

14

consideration and admittedly like in the present case the amount of

remaining 85% was not paid within fifteen days from the date of sale,

following the earlier decision of this Court in the case of Balram vs. Ilam

Singh, reported in (1996) 5 SCC 705, it has been held that failure to pay

85% of the purchase money within stipulated time renders the auction

sale a nullity and that there was no valid auction sale. It is submitted

that in the aforesaid decision it is held that failure to deposit the amount

within the stipulated time vitiates the auction process.

5.7 Now insofar as the reliance placed upon Section 154 of the MCS

Act, 1960 by the bank is concerned, it is submitted that the said

provision cannot be pressed into service when the auction has been

held in a completely illegal manner and in blatant violation of the rules

which are mandatory in nature. It is contended that in the present case

as there was no fresh proclamation issued and the auction was hastily

conducted after the stay was vacated, therefore the High Court has

rightly entertained the writ petition and has rightly set aside the auction

sale.

5.8 Relying upon the decisions of this Court in the cases of Ram

Kishun vs. State of Uttar Pradesh, reported in (2012) 11 SCC 511 and J.

Rajiv Subramaniyan vs. Pandiyas, reported in (2014) 5 SCC 651, it is

vehemently submitted by the learned Senior Advocate appearing on

15

behalf of the respondent – borrower that as observed by this Court in the

aforesaid two decisions the bank has to act fairly and all efforts should

be made to get the best price for the mortgaged property. It is submitted

that in the aforesaid decisions, it is held that the condition precedent for

taking away someone’s property or disposing of the secured assets is

that the authority must ensure compliance with the statutory provisions.

It is submitted that in the present case, while conducting the auction sale

and selling the property, the statutory provisions have not been followed

and in fact the property in question was sold at a lower price and

therefore the High Court has rightly quashed and set aside the auction

as well as the sale in favour of the auction purchaser.

5.9 Making the above submissions and relying upon the aforesaid

decisions, it is prayed to dismiss the present appeals.

6. We have heard the learned counsel for the respective parties at

length.

By the impugned judgment and order, the High Court has set aside

the auction sale conducted on 29.11.2010 and has cancelled the Sale

Certificate dated 19.01.2011 in favour of the auction purchaser on the

ground that the auction sale/sale was in breach of Rules 107(11) (e), (f),

(g) & (h) of the MCS Rules, 1961.

16

6.1 What was challenged before the High Court was the order passed

by the Divisional Joint Registrar passed in Revision Application No.

11/2011 under Section 154 of the MCS Act, 1960. However, it is

required to be noted that even the High Court in the impugned judgment

and order has specifically observed in paragraph 31 that as the borrower

did not exercise the right under Rule 107(13) of the MCS Rules, it was

not competent for the borrower to prefer revision before the Divisional

Joint Registrar under Section 154 of the MCS Act, 1960. Therefore,

once the revision application before the Divisional Joint Registrar under

Section 154 of the MCS Act, 1960 was held to be not maintainable

and/or competent at the instance of the borrower – respondent no.1

herein, thereafter the High Court ought not to have considered the writ

petition on merits.

7. Even otherwise on merits also, the High Court has erred in

entertaining the writ petition filed by the borrower and quashing and

setting aside the auction sale/sale by not bearing in mind the following

aspects:

firstly, that after conducting the auction sale and sale of the property

in favour of the auction purchaser, the borrower never applied to the

Recovery Officer to set aside the sale on the grounds of material

irregularity, mistake or fraud in publishing or conducting it;

17

secondly, as per proviso to Rule 107(14)(i) of the MCS Rules, no

sale shall be set aside on the ground of irregularity or fraud unless the

Recovery Officer is satisfied that the applicant has sustained substantial

injury by reason of such irregularity, mistake or fraud; and

thirdly, as per Rule 107(14)(iii), on the expiration of thirty days from

the date of sale, if no application to have the sale set aside is made or if

such application has been made and rejected, the Recovery Officer shall

make an order confirming the sale. Rule 107(14) reads as under:

“(14)(i) At any time within thirty days from the date of the sale of

immovable property, the applicant or any person entitled to share in a

rateable distribution of the assets or whose interests are affected by the

sale, may apply to the [District Deputy Registrar] to set aside the sale on

the ground of a material irregularity or mistake or fraud in publishing or

conducing it:

Provided that no sale shall be set aside on the ground of irregularity or

fraud unless the [District Deputy Registrar] is satisfied that the applicant

has sustained substantial injury by reason of such irregularity, mistake or

fraud.

(ii) If the application be allowed, the Recovery shall set aside the sale and

may direct a fresh one

(iii) On the expiration of thirty days from the date of sale, if no application

to have the sale set aside is made or if such application has been made

and rejected, the [District Deputy Registrar] shall make an order

confirming the sale;

Provided that if he shall have reason to believe that the sale ought to be

set aside notwithstanding that no such application has been made or on

grounds other than those alleged in any application which has been made

and rejected, he may, after recording his reasons in writing, set aside the

sale.

(iv) Whenever the sale of any immovable property is not so confirmed or is

set aside, the deposit or the purchase money, as the case may be, shall

be returned to the purchaser.

18

(v) After the confirmation of any such sale, the [District Deputy

Registrar] shall grant a certificate of sale bearing his seal and signature to

the purchaser, and such certificate shall state the property sold and the

name of the purchaser.”

7.1 In the present case, Sale Certificate was issued in favour of the

auction purchaser on 19.01.2011 after a period of thirty days from

holding the auction sale. At this stage, it is required to be noted that

even the Sale Certificate was issued by the Bank/Recovery Officer only

after the receipt of the approval of the District Deputy Registrar. While

approving the sale, the District Deputy Registrar noted in the approval

dated 29.11.2010 that the valuation of the land was determined at Rs.

98,10,000/- according to the letter issued by the Government approved

Valuer dated 10.06.2010 which was the upset price and the amount

realised was Rs.1,26,00,000/-, which is higher than the upset price.

Therefore, as such, even the District Deputy Registrar also did not doubt

the valuation and the amount realised, i.e., Rs. 1,26,00,000/- against the

upset price of Rs.98,10,000/-. Therefore, once the borrower failed to

apply to the Recovery Officer to set aside the auction sale on the

grounds of material irregularity, mistake or fraud in publishing or

conducting the auction sale within a period of thirty days from the date of

sale of immovable property, thereafter it was not open for the borrower to

challenge the sale on the ground of material irregularity. All the grounds

19

on which the High Court has set aside the auction sale/sale were

available with the borrower and the borrower did not apply to set aside

the sale on the said grounds of material irregularity, mistake or fraud.

Therefore, once the borrower failed to apply to the Recovery Officer to

set aside the sale on the ground of material irregularity within a period of

thirty days from the date of sale of the immovable property and thereafter

the Sale Certificate has been issued, normally the borrower cannot be

permitted to challenge the same subsequently, having not raised any

objection at the appropriate time and stage as per the statute, otherwise

the statutory provisions would become nugatory and unworkable.

7.2 It is also required to be noted that even under Rule 107(14)(i) of

the MCS Rules, 1961, no sale shall be set aside on the ground of

material irregularity, mistake or fraud unless the Recovery Officer is

satisfied that the applicant had sustained substantial injury by reason of

such irregularity, mistake or fraud. In the present case, there is no

finding recorded by the High Court that the borrower had sustained

substantial injury and by reason of such irregularity the auction sale had

to be set aside. Under the above circumstances also, setting aside of

auction sale/sale by the High Court is just contrary to the proviso to Rule

107(14)(i) of the MCS Rules, 1961.

20

8. One another ground on which the High Court has set aside the

auction sale is that as the auction was postponed by seven days, fresh

proclamation ought to have been issued. Therefore, according to the

High Court, not issuing the fresh proclamation and conducting/holding

the auction was in breach of Rule 107(11)(f) of the MCS Rules. The

High Court has also observed and held that as the auction was

held/conducted within a period of thirty days from the date of issuance of

proclamation, the same is in violation of Rule 107(11)(f) of the MCS

Rules. Rule 107(11)(f) of the MCS Rules reads as under:

“(f) When any immovable property is sold under these rules, the sale shall

be subject to the prior encumbrances on the property, if any. The applicant

shall, when the amount for the realisation of which the sale is held

exceeds Rs. 100, furnish to the Sale Officer within such time as may be

fixed by him or by the Recovery Officer, an encumbrance certificate from

the Registration Department for the period of not less than twelve years

prior to the date of attachment of the property sought to be sold, or in

cases falling under the proviso to sub-rule (10), prior to the date of the

application for execution. The time for production of the encumbrance

certificate may be extended at the discretion of the Sale Officer or the

Recovery Officer, as the case may be. The sale shall be by public auction

to the highest bidder:

Provided that it shall be open to the Sale Officer to decline to accept the

highest bid where the price offered appears to be unduly low or for other

adequate reasons:

Provided further that the Recovery Officer or the Sale Officer may, in his

discretion, adjourn the sale to a specified day and hour, recording his

reason for such adjournment. Where a sale is so adjourned for a longer

period than seven days, a fresh proclamation under clause (e) shall be

made, unless the defaulter consents to waive it.

The sale shall be held after the expiry of not less than thirty days

calculated from the date on which notice of the proclamation was affixed in

the office of the Recovery Officer. The time and place of sale shall be fixed

by the Recovery Officer and the place of sale shall be the village where

the property to be sold is situated or such adjoining prominent place of

public resort as may be fixed by the Recovery Officer:

21

Provided that in cases where an encumbrance certificate is not obtainable

owing to the destruction of the connected records, an affidavit from the

village Talathi or corresponding officer in regard to the encumbrances

known to him supported by a certificate from the Registration Department

that the encumbrance certificate cannot be granted owing to the

destruction of the connected records shall be accepted in place of an

encumbrance certificate.”

8.1 In the present case, the tender notice was issued and published in

the daily newspaper on 9.9.2010. The date fixed for submission of the

tender was 28.09.2010. At the last moment, i.e., on 28.09.2010, the

borrower filed revision application no. 58/2010 before the Divisional Joint

Registrar challenging the auction proceedings and the Divisional Joint

Registrar granted stay of the auction proceedings on 28.09.2010. The

revision application came to be dismissed by the Divisional Joint

Registrar vide order dated 23.11.2010. On dismissal of the revision

application and vacating the stay against the auction proceedings, the

bank/Recovery Officer opened the bids on 29.11.2010 in which the

auction purchaser was found to be the highest bidder who offered

Rs.1,26,00,000/- against the upset price of Rs. 98,10,000/-. Therefore,

as such, within a period of seven days from the date of vacating stay and

dismissal of the revision application, the auction was held. Therefore, it

cannot be said that the auction sale was in breach of Rule 107(11)(f) of

the MCS Rules. The period during which the stay was in operation was

to be excluded. Even otherwise, proviso to Rule 107(11)(f) is applicable

22

to issue a fresh proclamation in case the sale is adjourned for a longer

period than seven days by the Recovery Officer or the Sale Officer. The

said proviso is not applicable in a case where at the last moment the

borrower obtains a stay of the auction which is vacated after some time,

i.e., after a period of seven days. Once the sale was required to be

adjourned because of the stay order obtained by the borrower and the

stay continued for more than seven days which came to be vacated

subsequently, how such a person/borrower can be permitted to take the

benefit of his action of obtaining the stay and thereafter to contend that

even if the sale was adjourned for more than seven days due to the stay

order obtained by him, there shall be a fresh proclamation. This can be

said to be giving a premium to such a borrower. If the

contention/submission on behalf of the borrower is accepted that second

proviso to Rule 107(11)(f) does not state that the fresh proclamation is

not necessary if there is a stay of auction by higher authorities/Courts, in

that case, every dishonest borrower who wants to scuttle or delay the

auction/sale will approach the Court/appropriate authority at the eleventh

hour and obtain stay of the auction which may continue for more than

seven days and he would then contend that as more than seven days

have passed, fresh proclamation has to be issued. The aforesaid

position cannot be accepted.

23

9. Now insofar as the finding recorded by the High Court that the

auction was conducted/held within a period of thirty days from the date of

proclamation and therefore there is a breach of Rule 107(11)(f) is

concerned, it appears that the High Court has considered 09.09.2010 as

the date of proclamation. However, it is to be noted that 09.09.2010 was

the date on which the tender notice indicating the date of auction/sale

was issued. The same was published in the daily newspaper on

14.09.2010 fixing the date of auction/sale on 28.09.2010. It was not a

proclamation. Prior thereto, the proclamation/public notice dated

20.02.2010 was published in the daily newspaper ‘Sakal’ on 22.02.2010,

23.02.2010 and 24.02.2010. Even thereafter also, Public Advertisement

dated 26.05.2010, which also can be said to be a proclamation as per

Rule 107(11)(f) of the MCS Rules, 1961, was issued. Therefore, the

High Court is factually incorrect in concluding that the auction sale was in

breach of Rule 107(11)(f) of the MCS Rules, 1961.

10. Now insofar as the finding recorded by the High Court and reliance

placed upon the decisions of this Court in the cases of Shilpa Shares

and Securities (supra) and Balram (supra) that there was a breach of

Rule 107(11)(g) & (h) of the MCS Rules by not depositing the balance

85% sale consideration within a period of 15 days is concerned, the

same is also factually incorrect. The bids were opened on 29.11.2010

24

and the auction purchaser was found to be the highest bidder who

offered Rs. 1,26,00,000/-. On the very day, he deposited 15% of the sale

consideration. On 01.12.2010, an application was made to the District

Deputy Registrar, which was required as per circular dated 23.07.2004

issued by the Co-operative Commissioner & Registrar, Cooperative

Societies. The District Deputy Registrar approved the said proposal

which was received on 29.12.2010 and within a period of fifteen days

from the date of such approval, the auction purchaser deposited the

remaining 85% of the amount. Therefore, it cannot be said that there

was any breach of Rule 107(11)(g) &(h) of the MCS Rules, 1961 as

observed and held by the High Court.

11. Even the conduct on the part of the borrower is also required to be

noted and considered at this stage. A huge sum of Rs. 3,54,58,836/-

was due and payable. He has not paid/deposited even a farthing

towards the loan amount since 2010. However instead, he lodged an

FIR against the Bank Officers alleging that the mortgaged deeds of the

property and sale deed of the land Ghat No. 437 (to the extent of 34R)

and Ghat No. 440 (to the extent of 72R) are illegal. The said criminal

proceedings came to be quashed by the High Court vide order dated

23.09.2013. Number of proceedings were initiated by the borrower and

all efforts were made by him to delay the auction/sale of the mortgaged

25

properties without paying a single rupee. Pursuant to the proclamation

issued on 26.05.2010 under Rule 107(11) of the MCS Rules, 1961, thirty

days’ time was given to the concerned borrower to repay the debt, but no

steps were taken by him. The borrower was fully aware of this

publication. Thereafter, public notice was issued on 09.09.2010, which

was published on 14.09.2010 fixing the date of sale/auction on

28.09.2010. On that day, stay order was obtained by the borrower.

Before the High Court, it was the third round of litigation initiated by the

borrower. In the first round of litigation, he challenged the upset price

fixed by the Divisional Joint Registrar which was filed on 28.09.2010

being the last date of submission of the tender. The said revision

application No. 58/2010 came to be dismissed by the Divisional Joint

Registrar on 23.11.2010. Thereafter, the auction was held and the sale

certificate was issued in favour of the auction purchaser on 17.01.2011

and the sale deed was executed in favour of the auction purchaser on

19.01.2011. Even at that stage also, he could have applied for setting

aside the sale by depositing 5% of the amount equal to the purchase

money in terms of Rule 107(13) but the borrower failed to avail the said

opportunity. He even did not raise any objection before the Recovery

Officer about the alleged material irregularity as required under Rule

107(14). Instead, he challenged the auction proceedings before the

Divisional Joint Registrar by way of revision application No. 11/2011

26

under Section 154 of the MCS Act, 1960, which even as observed by the

High Court was not competent at the instance of the borrower. From the

aforesaid, it is clear that at every stage without paying a single rupee due

and payable, the borrower tried to stall the auction/sale proceedings.

12. Now insofar as the reliance placed upon the decisions of this Court

in the cases of Shilpa Shares and Securities (supra) and Balram (supra)

by the learned counsel appearing on behalf of the borrower is

concerned, the same shall not be applicable to the facts of the case on

hand, in view of our findings recorded hereinabove.

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

the present appeals succeed. The impugned judgment and order dated

30.07.2021 passed by the High Court of Bombay, Bench at Aurangabad

in Writ Petition No. 570/2012 is hereby quashed and set aside and

consequently Writ Petition No. 570/2012 filed by the borrowerrespondent no.1 herein stands dismissed.

The present appeals are accordingly allowed. However, there shall

be no order as to costs.

…………………………………J.

[M.R. SHAH]

NEW DELHI ………………………………..J.

FEBRUARY 16, 2022. [B.V. NAGARATHNA]

27

28

Sec.13[1][ib] of HM Act - Desertion -Whether wife deserted the husband without justifiable cause for more than 2 years ? from 30th June 2009, the respondent left the matrimonial home with all her personal belongings. According to the appellant’s case, from 30th June 2009, the respondent deserted - there is no dispute that the marriage between the parties was solemnized on 17th June 2009 and that they stayed together only till 30th June 2009. The petition for divorce was filed on 9th September 2011. As per clause (ib) of sub-section (1) of Section 13 of HM Act, the desertion must be for a continuous period of not less than two years immediately preceding the institution of the petition. In her affidavit in lieu of examination-in-chief filed on 24th June 2015, the respondent stated that after she became aware of the serious illness of the appellant’s mother, she came to Tezpur on 19th December 2009. She stayed with her sister-in-law. According to the respondent, on 20th December 2009, the appellant told her to leave Tezpur. Therefore, she left Tezpur. After she was informed about the death of the appellant’s mother, she came back to Tezpur and visited the appellant’s house on 21st December 2019, and left on the next day. In the affidavit in lieu of examination-in-chief, it is not even the case made out by the respondent that she came to Tezpur intending to resume the matrimonial relationship.The perusal of the respondent’s evidence does not disclose any effort made by her to resume the matrimonial relationship. She has not filed a petition for restitution of conjugal rights. As can be seen from the evidence on record, the appellant is carrying on business at Tezpur. The respondent is working as a Lecturer in University Law College at Gauhati. There is no dispute that from 1st July 2009 till date, they are staying separately. Merely because on account of the death of the appellant’s mother, the respondent visited her matrimonial home in December 2009 and stayed there only for one day, it cannot be said that there was a resumption of cohabitation. She has not stated that she came to her matrimonial home on 21st December 2009 with the intention to resume cohabitation. The intention on the part of the respondent to resume cohabitation is not established. Thus, in the facts of the case, the factum of separation has been proved.him.

Sec.13[1][ib] of HM Act - Desertion -Whether wife deserted the husband without justifiable cause for more than 2 years ?

from 30th June 2009, the respondent left the matrimonial home with all her personal belongings. According to the appellant’s case, from 30th June 2009, the respondent deserted - there is no dispute that the marriage between the parties was solemnized on 17th June 2009 and that they stayed together only till 30th June 2009. The petition for divorce was filed on 9th September 2011. As per clause (ib) of sub-section (1) of Section 13 of HM Act, the desertion must be for a continuous period of not less than two years immediately preceding the institution of the petition. In her affidavit in lieu of examination-in-chief filed on 24th June 2015, the respondent stated that after she became aware of the serious illness of the appellant’s mother, she came to Tezpur on 19th December 2009. She stayed with her sister-in-law. According to the respondent, on 20th December 2009, the appellant told her to leave Tezpur. Therefore, she left Tezpur. After she was informed about the death of the appellant’s mother, she came back to Tezpur and visited the appellant’s house on 21st December 2019, and left on the next day. In the affidavit in lieu of examination-in-chief, it is not even the case made out by the respondent that she came to Tezpur intending to resume the matrimonial relationship.The perusal of the respondent’s evidence does not disclose any effort made by her to resume the matrimonial relationship. She has not filed a petition for restitution of conjugal rights. As can be seen from the evidence on record, the appellant is carrying on business at Tezpur. The respondent is working as a Lecturer in University Law College at Gauhati. There is no dispute that from 1st July 2009 till date, they are staying separately. Merely because on account of the death of the appellant’s mother, the respondent visited her matrimonial home in December 2009 and stayed there only for one day, it cannot be said that there was a resumption of cohabitation. She has not stated that she came to her matrimonial home on 21st December 2009 with the intention to resume cohabitation. The intention on the part of the respondent to resume cohabitation is not established. Thus, in the facts of the case, the factum of separation has been proved.him.

Thus, in our considered view, the ground of desertion under clause (ib) of sub-section (1) of Section 13 of HM Act has been made out as the desertion for a continuous period of more than two years before the institution of the petition was established in the facts of the case

1

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 1339 OF 2022

[@ SLP(C) No.22667 of 2019]

DEBANANDA TAMULI …… APPELLANT

v.

SMTI KAKUMONI KATAKY …… RESPONDENT

J U D G M E N T

ABHAY S. OKA, J.

Leave granted.

1. This appeal arises from a matrimonial dispute between the

appellant-husband and the respondent-wife. The petition filed by

the appellant-husband on the grounds of cruelty and desertion set

out in clauses (ia) and (ib) of sub-section (1) of Section 13 of the

Hindu Marriage Act, 1955 ( for short “HM Act”) was dismissed by

the District Court. By the impugned order, the appeal preferred by

the appellant against the decree of the District Court has been

dismissed by the Gauhati High Court.

2. The marriage between the appellant and the respondent was

solemnized on 17th June 2009 at Tezpur in Assam. According to the

2

appellant’s case, from 30th June 2009, the respondent left the

matrimonial home with all her personal belongings. According to

the appellant’s case, from 30th June 2009, the respondent deserted

him.

3. On 9th September 2011, the appellant filed the petition for

seeking a decree of divorce in the District Court at Tezpur on the

grounds of cruelty and desertion. The ground of cruelty was based

on an allegation that the respondent consistently refused to

consummate the marriage, thereby causing mental agony to the

appellant. The appellant did not succeed before both the Courts.

As can be seen from the Orders passed by this Court from time to

time, an effort was made to bring about an amicable settlement in

the matrimonial dispute. The case was referred to mediation which

eventually failed. After that, we interacted with the parties on video

conference. However, an amicable settlement could not be arrived

at.

4. Shri Manish Goswami, the learned counsel appearing for the

appellant submitted that it is an admitted position that the marriage

was not consummated. His submission is that the refusal by the

respondent to consummate marriage caused mental cruelty to the

appellant. He submitted that after 30th June 2009, the respondent

never showed any inclination to return to the matrimonial home.

3

She never had any intention to start cohabiting with the appellant.

He submitted that though on 21st December 2009, the respondent

visited the matrimonial home for a day, it was for the reason of the

death of the appellant’s mother. Therefore, it cannot amount to the

resumption of matrimonial relationship. He placed reliance on the

decision of this Court in the case of Lachman Utamchand

Kirpalani v. Meena @ Mota1

 on the concept of desertion. He submitted that the law laid down by this Court in the said decision

has been consistently followed till date. He submitted that both the

Courts committed an error by holding that the ground of desertion

was not made out. The learned counsel lastly urged that in view of

the irretrievable breakdown of marriage, this Court should exercise

its plenary jurisdiction under Article 142 of the Constitution of India

to pass a decree of divorce.

5. Ms. Nidhi, the learned counsel appearing for the respondent

submitted that the appellant has not established that there was no

consummation of marriage. She submitted that the evidence is to

the contrary. She invited our attention to the explanation to subsection (1) of Section 13, which defines desertion. She urged that

even the factum of desertion has not been established by the

appellant, as rightly held by the District Court and the High Court.

1 (1964) 4 SCR 331

4

She invited our attention to the deposition of the respondent

recorded by the District Court. She submitted that there was no

intention on the part of the respondent to desert the appellant. On

the contrary, the appellant has made no efforts to resume

cohabitation. She relied upon a decision of this Court in the case of

Darshan Gupta v. Radhika Gupta2

. She submitted that merely

because husband and wife are staying separately, an inference

regarding desertion on the wife’s part cannot be drawn. Her

submission is that as a case for grant of divorce on any of the

grounds specified in sub-section (1) of Section 13 of HM Act is not

made out, this Court should not exercise its jurisdiction under

Article 142 of the Constitution of India for dissolving the marriage.

She urged that issue whether such a power can be exercised under

Article 142 to dissolve a marriage on account of a long separation

has been referred to the consideration of the Constitution Bench.

6. The learned counsel for the appellant urged that if this Court

is not satisfied that grounds of divorce as pleaded by the appellant

are made out, this is a fit case to put an end to the prolonged agony

of the parties by dissolving the marriage by exercising the plenary

powers of this Court under Article 142 of the Constitution.

2 (2013) 9 SCC 1

5

7. We have given careful consideration to her submissions.

Firstly, we deal with the issue of desertion. The learned counsel

appearing for the appellant relied upon the decision of this Court in

the case of Lachman Utamchand Kirpalani (supra) which has

been consistently followed in several decisions of this Court. The

law consistently laid down by this Court is that desertion means the

intentional abandonment of one spouse by the other without the

consent of the other and without a reasonable cause. The deserted

spouse must prove that there is a factum of separation and there is

an intention on the part of deserting spouse to bring the

cohabitation to a permanent end. In other words, there should be

animus deserendi on the part of the deserting spouse. There must

be an absence of consent on the part of the deserted spouse and

the conduct of the deserted spouse should not give a reasonable

cause to the deserting spouse to leave the matrimonial home. The

view taken by this Court has been incorporated in the Explanation

added to sub-section (1) of Section 13 by Act No.68 of 1976. The

said Explanation reads thus:

“13. Divorce.— (1) …………

3 [Explanation.—In this sub-section, the

expression “desertion” means the desertion

of the petitioner by the other party to the

_____________

3 Substituted by Act 68 of 1976

(w e f 27-05-1976)

6

 marriage without reasonable cause and

 without the consent or against the wish of

such party, and includes the wilful neglect of

the petitioner by the other party to the

marriage, and its grammatical variations and

cognate expressions shall be construed

accordingly.]”

8. The reasons for a dispute between husband and wife are

always very complex. Every matrimonial dispute is different from

another. Whether a case of desertion is established or not will

depend on the peculiar facts of each case. It is a matter of drawing

an inference based on the facts brought on record by way of

evidence.

9. Now, coming to the facts of the case, there is no dispute that

the marriage between the parties was solemnized on 17th June

2009 and that they stayed together only till 30th June 2009. The

petition for divorce was filed on 9th September 2011. As per clause

(ib) of sub-section (1) of Section 13 of HM Act, the desertion must

be for a continuous period of not less than two years immediately

preceding the institution of the petition. In her affidavit in lieu of

examination-in-chief filed on 24th June 2015, the respondent stated

that after she became aware of the serious illness of the appellant’s

mother, she came to Tezpur on 19th December 2009. She stayed

with her sister-in-law. According to the respondent, on 20th

7

December 2009, the appellant told her to leave Tezpur. Therefore,

she left Tezpur. After she was informed about the death of the

appellant’s mother, she came back to Tezpur and visited the

appellant’s house on 21st December 2019, and left on the next day.

In the affidavit in lieu of examination-in-chief, it is not even the case

made out by the respondent that she came to Tezpur intending to

resume the matrimonial relationship.

10. The perusal of the respondent’s evidence does not disclose

any effort made by her to resume the matrimonial relationship. She

has not filed a petition for restitution of conjugal rights. As can be

seen from the evidence on record, the appellant is carrying on

business at Tezpur. The respondent is working as a Lecturer in

University Law College at Gauhati. There is no dispute that from 1st

July 2009 till date, they are staying separately.

11. Merely because on account of the death of the appellant’s

mother, the respondent visited her matrimonial home in December

2009 and stayed there only for one day, it cannot be said that there

was a resumption of cohabitation. She has not stated that she

came to her matrimonial home on 21st December 2009 with the

intention to resume cohabitation. The intention on the part of the

respondent to resume cohabitation is not established. Thus, in the

facts of the case, the factum of separation has been proved. From

8

the evidence on record, an inference can be drawn that there was

animus deserendi on the part of the respondent. She has not

pleaded and established any reasonable cause for remaining away

from her matrimonial home.

12. Thus, in our considered view, the ground of desertion under

clause (ib) of sub-section (1) of Section 13 of HM Act has been

made out as the desertion for a continuous period of more than two

years before the institution of the petition was established in the

facts of the case. But, after having carefully perused the evidence

on record, we find that no case is made out to disturb the findings

recorded by the Courts on the issue of cruelty.

13. Earlier, when this Court made an effort for bringing about an

amicable settlement, the appellant had offered to pay a lump sum

amount of Rs.10,00,000/- (Rupees ten lakhs) to the respondent. In

the facts of the case, we propose to direct the appellant to pay a

sum of Rs.15,00,000/- (Rupees fifteen lakhs) to the respondent.

14. Hence, the impugned judgments are set aside. The Civil

Appeal is allowed in part. The marriage solemnized between the

parties on 17th June 2009 shall stand dissolved by a decree of

divorce under clause (ib) of sub-section (1) of Section 13 of the

Hindu Marriage Act, 1955.

9

15. We direct the appellant-husband to deposit a sum of

Rs.15,00,000/- (Rupees fifteen lakh only) in this Court within a

period of 8 weeks from today.

16. It will be open to the respondent to withdraw the said amount

of Rs.15,00,000/- (Rupees fifteen lakh). It will also be open to her

to withdraw a sum of Rs.50,000/- (Rupees fifty thousand) already

deposited by the appellant.

17. In the event, the amounts deposited by the appellant in this

Court are not withdrawn by the respondent within a period of two

months from the date on which the sum of Rs.15,00,000/- (Rupees

fifteen lakh) is deposited, the Registry shall place the appeal before

this Court for issuing necessary directions.

18. All the pending applications, if any, also stand disposed of.

There shall be no orders as to costs.

…………..…………………J

(AJAY RASTOGI)

…………..…………………J

(ABHAY S. OKA)

New Delhi;

February 15, 2022.