LAW FOR ALL

Friday, February 9, 2024

Was the Appellant No.1, in law, a member of the Panchayat, entitling him to vote, is the question that arises for consideration in this case - non submitting of validation of cast certificate with in time - No confidence motion is to be carried by not less than three-fourth of the total number of members.

The ‘war’ in this case is over the validity of a No Confidence Motion against Appellant No. 2 – Sushila Sitaram Kalel, the Sarpanch (Village head) of Jambulani Gram Panchayat. However, there is a ‘battle’ within, which entirely determines the result of the war. It is on the validity of the membership of Appellant No. 1 – Sudhir Vilas Kalel in the Panchayat. A Motion of No Confidence is to be carried by not less than three-fourth of the total number of members who are entitled, to ‘sit’ and ‘vote’. If the Appellant No. 1 was entitled to ‘Sit’ as a member on 19.06.2023, then the No Confidence Motion against Appellant No.2 cannot ‘Stand’, to deploy a Denningesque phrase. The High Court has found against the appellants. Aggrieved, they are before us in appeal.

2024 INSC 90

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1776 OF 2024

(@ SPECIAL LEAVE PETITION (C) NO. 23017 OF 2023)

SUDHIR VILAS KALEL & ORS. …Appellant (s)

Versus

BAPU RAJARAM KALEL & ORS. ...Respondent(s)

J U D G M E N T

K.V. Viswanathan, J.

1. Leave Granted.

2. The ‘war’ in this case is over the validity of a No

Confidence Motion against Appellant No. 2 – Sushila

Sitaram Kalel, the Sarpanch (Village head) of Jambulani

Gram Panchayat. However, there is a ‘battle’ within, which

entirely determines the result of the war. It is on the validity

of the membership of Appellant No. 1 – Sudhir Vilas Kalel

in the Panchayat. A Motion of No Confidence is to be

carried by not less than three-fourth of the total number of

members who are entitled, to ‘sit’ and ‘vote’. If the

Appellant No. 1 was entitled to ‘Sit’ as a member on

19.06.2023, then the No Confidence Motion against

Appellant No.2 cannot ‘Stand’, to deploy a Denningesque phrase. The High Court has found against the

appellants. Aggrieved, they are before us in appeal.

3. Was the Appellant No.1, in law, a member of the Panchayat,

entitling him to vote, is the question that arises for

consideration in this case. Is the Appellant No. 1 covered by

the protective umbrella under Sections 3 and 4 of the

Maharashtra Temporary Extension of Period for Submitting

Validity Certificate (for certain elections to Village

Panchayats, Zilla Parishads and Panchayat Samitis) Act,

2023 [hereinafter referred to as the “Temporary Extension

Act, 2023”]? If the answer is in the affirmative, the election

of the Appellant No. 1 as a reserved Member in the election

of the Gram Panchayat of Village Jambulani would stand

validated. Consequently, the No Confidence Motion

expressing No Confidence in the Appellant No. 2 – Sushila

Sitaram Kalel (the Sarpanch) would also stand nullified. If

Appellant No. 1 is held not to be entitled to the benefit of

Section 3 of the Temporary Extension Act, 2023, then he

would be deemed to have vacated his seat and consequently,

the No Confidence Motion would stand carried. For a fuller

understanding, the background facts and the statutory

regime need to be set out in some detail.

Brief facts and the Legislative Regime:

4. On 30.12.2020, the Appellant No. 1 filed his nomination

papers for contesting elections as a Member of the

Panchayat of Village Jambulani, District Satara on a seat

reserved for the OBC category. As early as on 03.02.2013

itself, the Appellant No. 1 was issued a Caste Certificate by

the Sub Divisional Officer, District Satara certifying that he

belongs to ‘Lonari’ Caste which is an Other Backward

Class. He had on the same day of filing his nomination

papers i.e. on 30.12.2020 applied for a Validity Certificate.

This Validity Certificate is an essential requirement under

the Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other

Backward Classes and Special Backward Category

(Regulation of Issuance and Verification of) Caste

Certificate Act, 2000 [hereinafter referred to as the “Caste

Certificate Act, 2000”]. There are elaborate rules framed

under this Act which will be discussed later in the judgment.

5. Under Section 3 of this Act, any person belonging to Other

Backward Class for the purpose of contesting for any

elective post in any local authority, should apply in such

form and in such manner as may be prescribed, to the

Competent Authority for the issuance of a Caste Certificate.

Under Section 4 of this Act, the Competent Authority is

entitled to issue a Caste Certificate. This is a Certificate

which the Appellant No. 1 possessed on 03.02.2013.

However, this alone is not conclusive. Under Section 4(2),

the Caste Certificate issued by the Competent Authority

would be valid subject to the verification and grant of

Validity Certificate by the Scrutiny Committee. Under

Section 6 of this Act, the Government is authorized to

constitute a Scrutiny Committee and prescribe the area of its

jurisdiction. Under Section 6(2) of this Act, after obtaining

the Caste Certificate from the Competent Authority, any

person, desirous of availing of the benefits or concessions

provided to the said caste, is authorized to make an

application, well in time, in such form and in such manner

as may be prescribed to the concerned Scrutiny Committee

for the verification of such Caste Certificate and issue of a

Validity Certificate. Under Section 6(4) of this Act, the

Scrutiny Committee was to follow such procedure for

verification of the Caste Certificate and adhere to the time

limit for verification and grant of Validity Certificate as

prescribed.

6. The Rules called the Maharashtra Scheduled Castes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other

Backward Classes and Special Backward Category

(Regulation of Issuance and Verification of) Caste

Certificate Rules, 2012 [hereinafter referred to as the “2012

Rules”] have been framed. Rule 11 prescribes the

constitution of the Scrutiny Committee. Rule 14 sets out that

any person desirous of availing of the benefits and

concessions provided to the reserved category shall submit

an application in the prescribed form with an affidavit to the

concerned Scrutiny Committee for verification of his caste

claim and issuance of Caste Validity Certificate well in time.

Rule 15 mandates that the application for verification of

Caste Certificate under Rule 14 shall be filed or submitted

well in time in such form and in such manner as may be

prescribed in Rule 17. Further Rule 16 provides for the

information to be supplied by the applicant. It states that to

enable the Scrutiny Committee to decide the application

expeditiously, the documents/information set out therein,

was to be produced. Apart from setting out certain

documents, sub-clause (f) provides for the furnishing of

other relevant evidence, if any, subject to admissibility.

Explanation 2 of Rule 16 speaks of the applicant

undertaking the production of original documents as and

when required by the Scrutiny Committee.

7. Rule 17, which prescribes the procedure of Scrutiny

Committee, is significant for this case. Sub-Rules 1 to SubRules 3 of Rule 17 are extracted herein below:

“17 (1) On receipt of application, the Scrutiny Committee

shall ensure that the application and the information

supplied therewith is complete in all respects and to carry

out scrutiny of the application.

(2) Notwithstanding anything contained in these rules,

the claimant or applicant or complainant shall be

personally responsible for removal of objections raised

by Scrutiny Committee, if any, within two weeks or

within such extended period, which shall not be more

than six weeks, failing which the claim or application or

complaint shall be disposed of, by appreciating available

records and such decision may be communicated to the

applicant by the Scrutiny Committee.

(3) The incomplete application may be rejected by

recording reasons.”

8. As is clear from the above, Rule 17 (2) states that applicant

was personally responsible for removal of objections raised

by the Scrutiny Committee within the time prescribed. SubRule 3 of Rule 17 categorically states that incomplete

application may be rejected by recording reasons.

9. For the purpose of adjudicating this case, alongside the

above statutes, certain provisions of the Maharashtra Village

Panchayats Act, 1959 [hereinafter referred to as the

“Panchayats Act”] which come into play, need to be set out

and analyzed. Section 10-1A, reads as follows:

"10-1A. Person contesting election for reserved seat to

submit Caste Certificate and Validity Certificate. -

Every person desirous of contesting election to a seat

reserved for Scheduled Castes, Scheduled Tribes or, as

the case may be, Backward Class of Citizens, shall be

required to submit, alongwith the nomination paper,

Caste Certificate issued by the Competent Authority and

the Validity Certificate issued by the Scrutiny Committee

in accordance with the provisions of the Maharashtra

Scheduled Castes, Scheduled Tribes, De-notified Tribes

(Vimukta Jatis), Nomadic Tribes, other Backward Classes

and Special Backward Category (Regulation of Issuance

and Verification of) Caste Certificate Act, 2000:

Provided that, for the General or by-elections for

which the last date of filing of nomination falls on or

before the 31st December 20231

, in accordance with the

election programme declared by the State Election

Commission, a person who has applied to the Scrutiny

Committee for verification of his Caste Certificate before

the date of filing of the nomination papers but who has

not received the Validity Certificate on the date of filing

of the nomination papers shall submit, along with the

nomination papers, -

(i) a true copy of the application preferred by him to

the Scrutiny Committee for issuance of the Validity

Certificate or any other proof of having made such

application to the Scrutiny Committee; and

(ii) an undertaking that he shall submit, within a period

of twelve months from the date on which he is

declared elected, the Validity Certificate issued by

the Scrutiny Committee:

Provided further that, if such person fails to produce

the Validity Certificate within a period of twelve months

from the date on which he is declared elected, his election

shall be deemed to have been terminated retrospectively

and he shall be disqualified for being a member.''

A similar provision in the form of Section 30(1A) exists for

persons contesting for the reserved office of Sarpanch.

1 (This date was originally 28.02.2021, at the time of the election in question)

10. In view of the above provision, every person desirous of

contesting election to a membership in the reserved

category, shall submit alongwith the nomination paper,

Caste Certificate issued by the Competent Authority and the

Validity Certificate issued by the Scrutiny Committee in

accordance with Caste Certificate Act, 2000. The proviso

sets out that for elections for which the last date of filing of

nomination fell on or before the date prescribed in the

proviso, a person who has applied to the Scrutiny

Committee for verification of his Caste Certificate before

the date of filing of the nomination papers but who has not

yet received the Validity Certificate shall submit, along with

the nomination papers, an undertaking that he shall submit

the same, within a period of twelve months from the date on

which he is declared elected. The further proviso sets out

that if such person fails to produce the Validity Certificate

within a period of twelve months from the date on which he

is declared elected, his election shall be deemed to have

been terminated retrospectively and the person was to be

disqualified for being a member.

11. In pari materia provision exists in the Maharashtra

Municipal Councils, Nagar Panchayats and Industrial

Townships Act, 1965 in the form of Section 9A therein.

12. A raging legal debate arose in Maharashtra about the nature

of these provisions – are they mandatory or are they

directory? The issue was settled by a Full Bench of the

Bombay High Court in the case of Anant H. Ulahalkar &

Anr. Vs. Chief Election Commissioner & Ors. [2017 (1)

Mh.L.J. 431]. This judgment of the Full Bench was

affirmed by this Court in the case of Shankar S/o

Raghunath Devre (Patil) Vs. State of Maharashtra &

Others.[ (2019) 3 SCC 220].

13. There were earlier divergent views in the High Court. The

parties contending that the provisions were “directory”,

primarily argued that the time taken for disposal by the

Scrutiny Committee was not in their control. According to

them, as long as the Validity Certificate was produced

within a reasonable time, the strict time limit provided in the

statute should be construed as directory and that elections

should not be invalidated for the said reason. On the other

hand, the proponents of the theory that the provision was

mandatory contended that the statute is couched in

mandatory terms, with the use of the word ‘shall’ and that

consequences had been provided for non-compliance. The

Full Bench, after considering the statutory provision and the

decided cases, in para 45 and 46 of the judgment first held

the following:

“45. In case of Sujit Vasant Patil (supra), the Full Bench

of this Court, in the context of inter play between similar

Municipal Legislations and the Caste Act, 2000, has held

that the legislature expects a person to claim benefit of

contesting to a reserved post only after obtaining Validity

Certificate from the Scrutiny Committee, though it also

permits a person to claim such benefit on the basis of a

tentative caste certificate issued by the Competent

Authority, if such a person is willing to take the risk.

Such reasoning is reflected in paragraphs 12A, 12B and

12C. Since paragraph 12B is most relevant, it is

transcribed below for reference of convenience:—

“12B. Thus the scheme is that a person who obtains a

caste certificate has to himself apply to the Scrutiny

Committee for scrutiny of his caste certificate, so that he

can secure a valid certificate from the Scrutiny

Committee, and it is only after the Scrutiny Committee

issuing a valid certificate that the caste

certificate issued in favour of the person by the

Competent Authority becomes final. In our opinion, the

scheme of subsection (2) of section 6 is that any

candidate who desires to avail of any benefit available to

backward class has to get a caste certificate as also the

validity certificate before he makes a claim for the

benefits. But if a candidate chooses to make claim to the

benefits on the basis of a tentative certificate namely a

certificate issued by the Competent Authority, he takes

the risk of his losing the benefits that he has claimed and

obtained and also being visited with penal consequences

on the refusal of the Scrutiny Committee to validate his

caste claim. The Act contemplates conscious decision

being made by a person at the time of claiming benefits.

The Legislature expects a person to claim the benefits

only after obtaining the validity certificate, but the

Legislature also permits a person to claim the benefits

on the basis of a tentative certificate issued by the

Competent Authority, if he is willing to take the risk

mentioned above. In our opinion, therefore, the validity

certificate is one of the essential ingredient of the

candidate being qualified to contest for the reserved

seat….”

(emphasis supplied)

46. According to Sujit Vasant Patil (supra), therefore, a

person who seeks to contest election to reserved posts

without compliance with the general rule of producing

Validity Certificate along with nomination papers, ‘takes

a risk’. The first proviso to section 9-A, in such a case,

makes this position quite clear by requiring such person

to furnish a statutory undertaking to produce Validity

Certificate within six months from the date of election.

The second proviso, in terms, provides for consequence

in case of breach. Such person, having taken the risk, cannot, in the absence of any ambiguity in the provision, be

permitted to wriggle out from the consequences of breach

so clearly and statutorily provided in the provision itself.

Otherwise, such person, will avail of a conditional concession, without, fulfilling the condition subject to

which such concession came to be granted in the

first place by the provision.”

The Legislature expects a person claiming the benefit of

contesting in a reserved post to be in possession of both the

Caste Certificate and the Validity Certificate at the time of

filing the nomination. The allowance to contest by

submitting the Caste Certificate alone was with the

undertaking that he would produce the Validity Certificate

within the stipulated time, and this was the risk that the

candidate was taking. It was a ‘risk’ because a Validity

Certificate which he ought to have ordinarily possessed on

the date of nomination being unavailable, he or she is

granted the concession of contesting, subject to the

undertaking. In the event of non-production within the

stipulated time, even an elected candidate would

automatically stand disqualified.

14. Thereafter, the Full Bench went on to hold as follows in para

80 and 81, while construing the nature of the time limit for

production of the Validity Certificate, as it then stood.

“80. ...If the legislature, for a limited period of time,

taking into consideration pendency of applications for

issuance of Validity Certificate before the Scrutiny

Committee grants some exemptions or concession to

persons who have applied for issue of Validity Certificate

before the date of filing nomination papers, but who have

not received such Validity Certificate on the date of filing

of nomination papers, subject to such persons producing

the Validity Certificate “within period of six months from

the date of election”, there is no reason to treat the

stipulation as to time has (sic.) merely directory and

thereby enlarge or extend the exemption or the

concession granted by the legislature.

81. If, the intention of the legislature was to grant

exemption from the requirement of producing Validity

Certificate, until, the elected candidate's application is

disposed of by the Scrutiny Committee, nothing

prevented the legislature from saying so expressly or at

least by necessary implication. Instead, in this case, and

perhaps, for good reason, the legislature has consciously

deemed it appropriate to insist that the person submits an

undertaking that he shall produce the Validity Certificate

within six months and further, the legislature, in clear,

unambiguous and express terms has provided that upon

the failure of such person to produce the Validity

Certificate within six months from the date of election,

his election shall be deemed to have been retrospectively

terminated and he shall be disqualified for being a

Councillor. If, the stipulation as to time is construed as

directory, then, the legislative intent, so clearly expressed,

will be defeated. The significant portions of the provision

will be rendered a mere surplusage. In essence, this Court

would be rewriting the statute on the basis of its own

value judgments or notions of equity and inequity.”

After holding that the provision is mandatory, the Full

Bench held that failure to produce the Validity Certificate

from the Scrutiny Committee within the stipulated time

would mean that the election was deemed to have been

terminated retrospectively and the person was to be

disqualified. It also held that retrospective termination of the

election and disqualification were automatic in the

following words:-

“98. In the present case also the legislature in enacting

section 9-A has provided for a statutory fiction, which is

evident from the use of expression “his election shall be

deemed to have been terminated retrospectively and he

shall be disqualified being a Councillor”. The statutory

fiction must be allowed to have its full play. No other

provision or reason has been pointed out to take the view

that consequences prescribed under second proviso to

section 9-A are not automatic or would require any

further adjudication once it is established that the person

elected has failed to produce the Validity Certificate

within a stipulated period of six months from the date of

his election.

99. The validation of caste claim of the elected

Councillor by the Scrutiny Committee beyond the

prescribed period would have no effect upon the statutory

consequences prescribed under the second proviso to

section 9-A i.e. deemed retrospective termination of the

election of such Councillor and his disqualification for

being a Councillor. The subsequent validation or issue of

the Validity Certificate will therefore be irrelevant for the

purpose of restoration of the Councillor's election but,

such validation will obviously entitle him to contest the

election to be held on account of termination of his

election and the consequent vacancy caused thereby.

100. In the result, we hold that the time limit of six

months prescribed in the two provisos to section 9-A of

the said Act, within which an elected person is required to

produce the Validity Certificate from the Scrutiny

Committee is mandatory.”

Further, in terms of second proviso to section 9-A

if a person fails to produce Validity Certificate within a

period of six months from the date on which he is

elected, his election shall be deemed to have been

terminated retrospectively and he shall be disqualified for

being a Councillor.

Such retrospective termination of his election and

disqualification for being a Councillor would be

automatic and validation of his caste claim after the

stipulated period would not result in restoration of his

election.

The questions raised, stand answered accordingly.”

15. This statutory background is essential to interpret the

Temporary Extension Act, 2023. To consider whether the

Appellant No. 1 is entitled to the protection of the

Temporary Extension Act, 2023, it is necessary to

recapitulate the facts of the present case. The Appellant No.

1 obtained his Caste Certificate on 03.02.2013. Only on

30.12.2020 (the date of his nomination) he submitted an

application for the Validity Certificate to the Caste Scrutiny

Committee. At the time of filing of his nomination, he also

filed an undertaking that he will produce the Caste Validity

Certificate within twelve months from the date of his

election. On 18.01.2021, the elections were held and on

21.01.2021, the results were declared and the Appellant No.

1 was declared elected. The twelve months period expired

on 20.01.2022.

16. On 30.12.2020, when he filed the application online to the

Scrutiny Committee for obtaining the Validity Certificate, a

receipt was issued to him. In the receipt, the following

endorsement appears:-

“I have been informed that, within seven days will file

declaration otherwise the matter should be closed.”

Thereafter, it is undisputed that on 01-03/04/2021, the

District Caste Certificate Verification Committee, Satara

made the following order. This order also covered the case

of the Appellant No. 1 along with 3013 other applicants. The

order reads as under:

“As per above read No 1 the intended contestants of the

elections of Local Bodies. Municipal Councils,

Municipal Corporations have submitted their application

for their cast certificates with the office of the

Committee. As per the read No 2 and 3 above the elected

candidates in local bodies, municipal councils and

corporations from reserved seats, have to submit their

cast verification certificate within one year from the

election.

As per read No. 4 above notification regarding decision

of the election dtd 23.03.2021 of Collector (Election

Branch) and as per the notification submitted by the

elected candidates the committee scrutinized that,

whether these applicants are elected in such elections or

not? After scrutiny it found that, these applicant

candidates have not been elected in the elections from the

reserve seats. As such elected candidates have not filed

the notification of elected candidates in time, this office

cannot take decision in this regard. Hence this proposal

has been filed as per the provisions of Rules 17(2)(3) of

Maharashtra Rules of verification of caste certificate SC,

ST, OBC, Spl BC 2012.”

It is clear from the operative portion of the order that since

the elected candidates have not submitted the notification of

being elected, in time, the office was not able to take any

decision in that regard. In view of that, the proposal was

‘filed’ as per the provisions of Rule 17 (2)(3) of the 2012

Rules.

17. Before we take up for consideration the interpretation of

Sections 3 and 4 of the Temporary Extension Act, 2023, one

judgment of the High Court of Judicature at Bombay in the

case of Mandakani Kachru Kokane alias Mandakani

Vishnu Godse Vs State of Maharashtra & Ors. [2021 (3)

Mh.L.J. 221] needs to be referred to. In the said judgment,

in para 48, 49, 50(ii) and 50(iii), the following significant

directions were issued:

“48. Shri Satyajit Dighe, learned counsel for the

Petitioner rightly submitted that impugned order of the

Caste Scrutiny Committee was passed almost on the last

day of twelve months mandatory period and therefore, no

time was left for approaching this Court which is the only

remedy available i.e. the constitutional remedy. Thus

Petitioner's right to approach this Court under Article 226

of the Constitution of India is violated….

49. However, in view of the law laid down by the Full

Bench of this Court in the case of Anant H. Ulharkar

(supra) Section 30(1A) of the Maharashtra Village

Panchayat Act, 1958 is mandatory and therefore time

limit provided therein cannot be extended. However, we

are constrained to issue directions to all the Caste

Scrutiny Committees to decide the matters much before

the mandatory period of twelve months if the aforesaid

provisions are applicable. However, this will be subject to

the condition that the applicant completely co-operates in

disposal of the proceedings in time bound manner and do

not seek unnecessary adjournments.

50. (ii) All the District Caste Scrutiny Committees are

directed to dispose of the matters which are covered by

the mandatory period of twelve months as provided in

Section 10-1A and Section 30(1A) of the Maharashtra

Village Panchayat Act, 1959, Section 9A of the

Maharashtra Municipal Councils, Nagar Panchayat and

Industrial Townships Act, 1965, in Section 5-B of the

Mumbai Municipal Corporation Act, 1888 and Section 5-

B of the Maharashtra Municipal Corporation Act, 1949 as

expeditiously as possible and in any case within a period

of eight months subject to following conditions:

(a) The concerned successful candidate who has applied

for getting caste certificate validated to convey his

election result and this order to the relevant District Caste

Scrutiny Committee personally or through his Advocate

within a period of two weeks from the date of declaration

of the result of his election and pointing out to the

Committee the aforesaid time period of twelve months as

provided in the aforesaid provisions with a request to

expedite the hearing and to complete the proceedings

within the time prescribed in this judgment.

(b) The relevant District Caste Scrutiny Committee to fix

tentative time table for disposal of the said case in

maximum period of eight months from the above referred

communication of the successful candidate to the

Committee. However while fixing the time table the

Committee shall also have regard to the provisions of

said Act and said Rules.

cooperate in expeditious disposal of the respective

proceedings before the committee and shall not take any

adjournment without valid reason.

(d) It is specifically directed that in case such successful

candidate fails to comply with the above directions then

the time limit as fixed herein will not apply to such

proceedings.

(iii) The Chief Secretary of the State of Maharashtra is

directed to circulate to all the District Caste Scrutiny

Committees copy of this judgment within a period of 30

days from today.”

It is obvious from the above directions issued on 27th

October, 2020 (well before the Appellant No. 1 filed the

application for the Validity Certificate on 30.12.2020) that

within two weeks from the declaration of the result the

successful candidate from the reserved seats was obligated

to convey his election result and the order and the judgment

of the High Court to the relevant Caste Scrutiny Committee.

The candidate was also to point out the aforesaid time limit

and request for an expeditious hearing and completion of

proceeding within the said period. It is further clear that the

Scrutiny Committee was to fix a tentative time table and

dispose of the said application within a maximum period of

eight months from the date of the aforesaid communication.

The successful candidate was to co-operate in the

expeditious disposal of the respective proceedings. Most

importantly, it was specifically directed that in case the

successful candidate failed to comply with the directions,

then the time limit fixed therein will not apply to such

proceedings.

18. It is also the understanding of the Appellant No. 1, as

evident from the undertaking furnished along with his

second application on 14.06.2023, which is in the following

terms:

“I, Applicant – Sudhir Vilas Kalel respectfully submitting

this

I applicant Sudhir Vilas Kalel submitting my request

application that, I contested the election of

Grampanchayat Jambhulni, Tal Man in the year 2020 and

I am elected in the said election. In that respect Ld.

Election Officer, Tal Man has given me declaration/letter

to me. Due to some reasons, I could not submit the same

within time and therefore my proposal has been rejected

by the Committee.

That today on 14.07.2023, I am again submitting my

fresh proposal and accepting the responsibilities for

delay. I am solely responsible for the delay caused. You

are kindly requested to accept my proposal and please

issue me the Caste Validity Certificate at your earliest.”

(Emphasis Supplied)

19. No doubt, on this application which is filed on 14.06.2023

(filed long after the submission of his nomination on

30.12.2020), he obtained the Validity Certificate on

12.07.2023.

20. In this background we need to examine whether the

validation under Section 3 of the Temporary Extension Act,

2023 applies to the case of the Appellant No. 1. The

provisions of Sections 3 and 4 of the Temporary Extension

Act, 2023, along with its Statement of Objects and Reasons,

are set out and analyzed in the later part of the judgment.

21. A factual aspect that needs to be noticed is that on

26.05.2023, the Tehsildar forwarded a report to the

Respondent No.11 - District Collector, Satara informing that

the Appellant No. 1 Sudhir Vilas Kalel has failed to produce

his Caste Validity Certificate within the prescribed time as

per Section 10(1A) of the Panchayats Act.

Proceedings arising from the No Confidence Motion

22. On 13.06.2023, eight Members moved a No Confidence

Motion against Appellant No. 2-Sushila Sitaram Kalel,

expressing No Confidence in her being the Sarpanch. The

eight Respondents herein voted in favour of the No

Confidence Motion. If Appellant No.1 was entitled to sit, the

total number of members would be eleven and eight

members voting would only constitute 72.73%. If the

Appellant No.1 was not entitled to sit, then the total number

of members would be ten and eight members voting would

constitute 80%. On 19.06.2023, on the ground that there was

absence of minimum three-fourth of the Members voting in

favour of the motion, the No Confidence Motion was

ordered as rejected. The relevant part of Section 35 of the

Panchayats Act which deals with the process of No

Confidence Motion is extracted below:

“35. Motion of no confidence. –

(1) A motion of no confidence may be moved by not less

than two third of the total number of the members who

are for the time being entitled to sit and vote at any

meeting of the panchayat against the Sarpanch or the

Upa-Sarpanch after giving such notice thereof to the

Tahsildar as may be prescribed. Such notice once given

shall not be withdrawn.

(2) Within seven days from the date of receipt by him of

the notice under sub-section (1), the Tahasildar, shall

convene a special meeting of the panchayat at a time to

be appointed by him and he shall preside over such

meeting. At such special meeting, the Sarpanch or the

Upa- Sarpanch against whom the motion of no

confidence is moved shall have a right to speak or

otherwise to take part in the proceedings at the meeting

including the right to vote.

(3) If the motion is carried by a majority of not less than

three-fourth of the total number of the members who are

for the time being entitled to sit and vote at any meeting

of the panchayat or the Upa-Sarpanch, as the case may

be, shall forthwith stop exercising all the powers and

perform all the functions and duties of the office and

thereupon such powers, functions and duties shall vest in

the Upa-Sarpanch in case the motion is carried out

against the Sarpanch; and in case the motion is carried

out against both the Sarpanch and Upa-Sarpanch, in such

officer, not below the rank of Extension Officer, as may

be authorised by the Block Development Officer, till the

dispute, if any, referred to under sub-section (3B)

is decided: …”

23. On 23.06.2023, respondents no. 1 to 8 filed a Writ Petition

before the High Court praying that the No Confidence

Motion against Appellant No. 2 be declared to be duly and

validly carried, and for consequential directions directing

the Appellant No. 2 to forthwith stop exercising all the

powers, functions and duties as the Sarpanch. Further

directions for declaring election to the post of Sarpanch

were also prayed.

24. On 12.07.2023, the District Caste Certificate Scrutiny

Committee, Satara granted the Caste Validity Certificate to

the Appellant No. 1.

25. By its judgment of 20.09.2023, which is impugned herein,

the Division Bench of the High Court made rule absolute in

terms of prayer (a) and (b) of the Writ. Prayer (a) and (b) of

the Writ is as under:

(a) By suitable writ, order or direction this Hon’ble

Court may be pleased to hold and declare that the no

confidence motion against the present Respondent No. 3

moved by the Petitioners on 13/06/2023 has been duly and

validly carried with the requisite majority in the special

meeting conveyed by the Respondent No. 2 and held on

19/06/2023 and consequently the direction be issued to the

Respondents that the Respondent No. 3 shall forthwith

stop exercising all the powers, functions and duties as the

Sarpanch in the village Panchayat Jambulani Taluka Man,

District Satara and thereafter, further direction be issued to

the Respondent No. 2 and Respondent No. 6 – the

Collector to declare the election for the post of the village

Sarpanch for electing the new Sarpanch in the said Village

Panchayat.

(b) By suitable writ, order or direction the declaration

made by the Respondent No. 2 in the special meeting held

on 19/06/2023 and as recorded in the minutes of the said

meeting declaring that the no confidence motion against

the Respondent No. 3 has failed be quashed and set aside.

Questions for Consideration:

26. In this scenario, the questions that arise for consideration

are as follows:

a. Whether Appellant No. 1 is entitled to the protection

of Sections 3 and 4 of the Temporary Extension Act,

2023?

b. Whether the proceedings of 19.06.2023 holding the

No Confidence Motion against Appellant No. 2 as

not carried for want of the requisite votes is tenable?

Contentions

27. We have heard Mr. Gaurav Agrawal, learned advocate (since

designated as a senior counsel) for the appellants and Mr.

Vinay Navare, learned senior counsel for the Respondent

nos. 1 to 8 as well as Mr. Aniruddha Joshi, learned counsel

for the official respondents. Mr. Gaurav Agrawal, learned

advocate vehemently contends that the application filed

before the Scrutiny Committee on 30.12.2020 has not been

rejected. According to the learned counsel, the order dated

01-03/04.2021 cannot be construed as a rejection; that his

application was pending and the filing done on 14.06.2023

was only a re-filing after curing the defects. In view of the

same, according to the learned counsel, the Appellant No.1

is entitled to the benefit of the validation provision under

Section 3 of the Temporary Extension Act, 2023. Learned

counsel contends that under Section 35(3) of the

Maharashtra Village Panchayats Act, a No Confidence

Motion has to be carried by a majority of not less than threefourth of total number of Members who are for the time

being entitled to sit and vote. Hence, submits the learned

counsel, that the requisite majority of nine votes was not

obtained.

28. In response, Mr. Vinay Navare, learned senior counsel and

Mr. Aniruddha Joshi, learned counsel for the Respondent

authorities, have contended that the Appellant No. 1 is not

entitled to the benefit of Section 3 of the Temporary

Extension Act, 2023 as that Section will apply only to a

person who has applied to the Scrutiny Committee for

verification of his Caste Certificate before the date of filing

the nomination papers and who is elected on the reserved

seat but whose application is pending before the Scrutiny

Committee on 10.07.2023, the date of commencement of the

Temporary Extension Act, 2023. It is only to those persons

the benefit of submission of the Validity Certificate within

twelve months from 10.07.2023 is made available.

According to them, it is only that person’s election which

may have been terminated or deemed to have been

terminated for not submitting the Validity Certificate would

be protected by the deeming provisions which enabled the

individual to continue to be a Member or Sarpanch. They

further contended that the impugned order warrants no

interference as it has been rightly held that on account of the

conduct of the Appellant No. 1 in not furnishing the

declaration as undertaken and as required, he is deemed to

be automatically disqualified with retrospective effect from

the date of his election. Since the No Confidence Motion

was carried with eight Members out of ten, who were

entitled to sit and vote, the rejection of No Confidence

Motion was illegal.

Discussion and findings:

29. Sections 3 and 4 of the Temporary Extension Act, 2023 read

as under:-

“3. (1) Notwithstanding anything contained in sections

10-1A and 30-1A of the Maharashtra Village Panchayats

Act and sections 12A, 42 and 67 of the Maharashtra Zilla

Parishads and Panchayat Samitis Act, 1961, for

contesting General or bye-elections to the Village

Panchayats, Zilla Parishads and Panchayat Samitis

which were held on or after 1st January 2021 and till the

date of commencement of this Act,—

(a) a person, who has applied to the Scrutiny Committee

for verification of his Caste Certificate before the date of

filing of the nomination papers and who is elected on the

reserved seat of a member or Sarpanch of Village

Panchayat, Councillor or President of Zilla Parishad or

member or Chairman of Panchayat Samiti, but whose

application is pending before the Scrutiny Committee on

the date of commencement of this Act, shall submit his

Validity Certificate within a period of twelve months

from the date of commencement of this Act ;

And

(b) a person, whose election has been terminated or

deemed to have been terminated or a person who is

disqualified for being a member or Sarpanch of Village

Panchayat, Councillor or President of Zilla Parishad or

member or Chairman of Panchayat Samiti for not

submitting the Validity Certificate within the period

specified in sections mentioned above, shall be deemed to

be and shall continue to be a member or Sarpanch of

Village Panchayat, Councillor or President of Zilla

Parishad or member or Chairman of Panchayat Samiti,

as the case may be, and shall not be disqualified till the

period of twelve months from the date of commencement

of this Act for not submitting the Validity Certificate:

Provided that, if such person fails to produce the

Validity Certificate within a period of twelve months

from the date of commencement of this Act, his election

shall be deemed to have been terminated retrospectively

and he shall be disqualified for being a member or

Sarpanch of Village Panchayat, Councillor or President

of Zilla Parishad or member or Chairman of

Panchayat Samiti.

(2) The provisions of sub-section (1) shall not be

applicable,—

(a) where bye-elections have been held on the seats

specified in sub-section (1) before the date of

commencement of this Act ; or

(b) where a member whose application of Validity

Certificate has been rejected by the Scrutiny Committee.

4. All legal proceedings pending immediately before the

date of commencement of this Act, before any court or

authority relating to disqualification of a member or

Sarpanch of Village Panchayat, Councillor or President

of Zilla Parishad or member or Chairman of Panchayat

Samiti, for not submitting the Validity Certificate by them

in cases where extension of period for submission of

Validity Certificate is granted under this Act, shall abate.”

30. The statement of objects and reasons leading to the passing

of the Temporary Extension Act, 2023 w.e.f. 10.07.2023 are

important. They are extracted hereinbelow:-

“Sections 10-1A and 30-1A of the Maharashtra Village

Panchayats Act (III of 1959) and sections 12A, 42 and 67

of the Maharashtra Zilla Parishads and Panchayats

Samitis Act, 1961 (Mah. V of 1962) provides that, every

person desirous of contesting elections to a seat of a

member or Sarpanch of the Village Panchayat, Councillor

or President of the Zilla Parishad or member or Chairman

of Panchayat Samiti reserved for persons belonging to

Scheduled Castes, Scheduled Tribes or, as the case may

be, Backward Classes of Citizens, shall submit alongwith

the nomination paper, Caste Certificate issued by the

Competent Authority and the Validity Certificate issued

by the Scrutiny Committee.

2. The abovementioned sections of the said Acts are

amended with a view to allow the persons, desirous of

contesting for such reserved seats in certain general or

bye-elections and have applied to the Scrutiny Committee

for obtaining Validity Certificate, to submit the Validity

Certificate within twelve months from the date on which

they were declared elected.

3. As the Scrutiny Committees are overburdened with

the work of verification of Caste Certificates, the

elected members were facing difficulties in obtaining

the Validity Certificates from the Scrutiny

Committees within the period specified in the said

Acts. The applications of such elected members are

still pending before the Scrutiny Committees.

However, due to pending applications of such members

before Scrutiny Committees more than seven thousand

duly elected members were disqualified or might be

disqualified for not submitting Validity Certificates for no

fault of their own. Also it had caused hindrance in the

local self-governing process. It was, therefore,

necessary to ensure that such elected candidates shall

not be deprived to hold such offices merely because of

non-issuance of validity certificates in time by the

Scrutiny Committees when their applications are still

pending with the Scrutiny Committees.

4. It was, therefore, considered expedient to make a law

to provide for extension of a period of twelve months for

submitting Validity Certificates by persons elected on

reserved seats of member, Sarpanch, Councillor,

President and member and Chairman in certain general or

bye-elections to Village Panchayats, Zilla Parishads and

Panchayat Samitis and for the matters connected

therewith or incidental thereto.

5. As both Houses of the State Legislature were not in

session and the Governor of Maharashtra was satisfied

that circumstances existed which rendered it necessary

for him to take immediate action to make a law, for the

purposes aforesaid, the Maharashtra Temporary

Extension of Period for Submitting Validity Certificate

(for certain elections to Village Panchayats, Zilla

Parishads and Panchayat Samitis) Ordinance, 2023 (Mah.

Ord. VI of 2023), was promulgated by the Governor of

Maharashtra on the 10th July 2023.

6. The Bill is intended to replace the said Ordinance by an

Act of the State Legislature.”

(emphasis supplied)

31. As would be evident, this Temporary Extension Act was

enacted since the Scrutiny Committees were overburdened

with the work of verification of Caste Certificates and the

elected members were facing difficulties in obtaining the

Validity Certificates within the prescribed time. It is aimed

to protect the applicants whose applications are still pending

before the Scrutiny Committee. The idea was that such

elected candidates ought not to be deprived merely because

of non-issuance of Validity Certificates when the

applications are still pending. Section 3 begins with a non

obstante clause. It applies to elections held on or after the

st January, 2021 and till 10.07.2023, the date of

commencement of the Temporary Extension Act, 2023. It

clearly provides that it covers the cases of persons who have

applied to the Scrutiny Committee for verification of his

Caste Certificate before the date of filing of the nomination

papers and who are elected on the reserved seat; and whose

applications are pending before the Scrutiny Committee on

the date of commencement of the Act. It is mandated that

they can produce the certificate within twelve months from

the date of commencement of the Temporary Extension Act,

2023 i.e. till 09.07.2024. Sub-clause (b) states that a person

whose election has been terminated or deemed to have been

terminated or a person who is disqualified for being a

Member or Sarpanch for not submitting the Validity

Certificate within the period specified in the sections

mentioned above (10-1A and 30-1A), shall be deemed to be

and shall be continued to be a member or Sarpanch and

shall not be disqualified till the period of twelve months.

Sub-section (2) further clearly states that the provisions of

sub-section (1) shall not apply where the member whose

application of Validity Certificate had been rejected by the

Scrutiny Committee. Section 4 states that all legal

proceedings pending immediately before the date of

commencement of the Act, before any court or authority

relating to disqualification of a member, for not submitting

the Validity Certificate where extension of period for

submission is granted under the present Act was to abate.

32. The High Court, in the impugned order, has recorded the

following findings in its operative portion:

“32. In this particular case, Sudhir's application for a

Validity Certificate was rejected on 1st April 2021. The

argument that this rejection is technical is totally

irrelevant. In fact, the order seems to us to expose

precisely the mischief that is sought to be cured and

addressed by Section 10-1A and the amended proviso. It

is not permissible for a candidate to simply file an

application and do nothing further. That application for a

Validity Certificate must be properly filed and followed

through. The mere filing of the application is not in

sufficient compliance with the statute. The Validity

Certificate has to be obtained within the time provided,

whether by the original statute or by the Temporary

Extension Act. Simply filing some sort of defective

application with incomplete documents does not

meet the statutory purpose.

33. Thus, if even the mischief rule of interpretation, the

oldest interpretation doctrine by far, [Heydon’s case,

1584, 76 ER 637] is adopted for the purposes of the

Maharashtra Village Panchayats Act, 1959 and the

Temporary Extension Act, it is clear that

defective or incomplete applications that result in a

rejection are no different from a rejection on merits. Yet,

Section 3(2)(b) of the Temporary Extension Act is

thus an essential safeguard.

34. Viewed from either perspective, the Temporary

Extension Act cannot come to Sudhir's rescue. We note

from the Ordinance, a copy of which is at pages 93 and

96, that it was necessitated because of the huge backlog

of applications pending before the scrutiny committee.”

33. As was set out earlier, after obtaining his caste certificate on

03.02.2013, it was only on 30.12.2020 that is on the same

day of the nomination that the Appellant No. 1 moved the

Scrutiny Committee for obtaining the Validity Certificate.

The elections were held on 18.01.2021 and the results were

declared on 21.01.2021. He ought to have furnished the

Validity Certificate by 20.01.2022.

34. After filing his application for the Validity Certificate on

30.12.2020, he undertook that he would file the declaration

of the results within a week. Besides, this undertaking is

legally backed by the judgment in Mandakani Kachru

Kokane (supra), which no doubt gave two weeks from the

date of declaration of the result for communication of the

declaration to the Scrutiny Committee. Admittedly, the

appellant No. 1 did not submit the declaration either within

one week as undertaken or within two weeks as provided in

Mandakani Kachru Kokane (supra). In cases where there

is due communication from the applicants, the Division

Bench in Mandakani Kachru Kokane (supra) had obligated

the Scrutiny Committee to decide the case within a

maximum period of eight months from the date of

communication. The Scrutiny Committee which is faced

with a large number of applications can legitimately expect

that the applicants who require disposal on priority basis

should comply with the formalities required to enable the

applicant to get priority in decision making. The Committee

under Rule 17(3) is also entitled to reject incomplete

applications by recording reasons. Under Section 17(2) it is

also the obligation of the applicant to comply with removal

of objections raised.

35. It is in this background that the order of 01-03/04/2021

came to be passed whereby the applications (including those

of the Appellant No.1), were ‘filed’. On the facts of the

case, the question is, would the order of 01-03.04.2021

tantamount to a rejection under Section 3(2)(b) of the

Temporary Extension Act, 2023 so as to dis-entitle

Appellant No.1 from the benefit of Section 3.

36. To answer this question, the object of Section 10-1A and 30-

1A of the Panchayats Act along with Sections 3 and 4 of the

Temporary Extension Act, 2023 ought to be borne in mind.

As has been correctly held in Anant H. Ulahalkar (supra)

while reiterating the holding in Sujit Vasant Patil (supra),

ordinarily, the rule is for an aspiring candidate in an election

to submit the Caste Certificate and the Validity Certificate

along with the nomination. However, a window of twelve

months was given for those who have not obtained the

Validity Certificate to furnish the same and this was held to

be a “risk” that the applicants were taking. Under the Caste

Certificate Act, 2000, the certificate attains finality only if it

is authenticated with a Validity Certificate. That statute and

scheme have been discussed herein above. From those who

aspire to contest for a reserved seat and who take a risk of

applying for the validity certificate by filing an application

before the date of nomination, it is prudent to expect that

they will show utmost due diligence in the prosecution of

their application. This would mean that they are expected to

do all that is within their control to do and submit with the

Scrutiny Committee a valid application for their

consideration. In fact, it was on the basis that applicants

aspiring to contest election who do not possess a Validity

Certificate, were taking a risk, that the provisions were held

to be mandatory. Further and independent of the above,

Mandakani Kachru Kokane (supra) which came on

27.10.2020 well before the Appellant No.1 filed his

nomination clearly mandated that there was an obligation on

the applicants before the Scrutiny Committee to furnish the

declaration of the results within two weeks of the

declaration of the results for expeditious disposal. In this

case, results were announced on 21.01.2021. Under the law,

as it obtained in Maharashtra, as laid down in the statute and

in the judgments of the Court, there was an obligation to

furnish the validity certificate on or before 20.01.2022. The

Appellant No. 1 admitted in the second application filed on

14.06.2023 that inspite of possessing the declaration of the

result, for some reason, he could not file the same with the

Scrutiny Committee. The consequence was that on

20.01.2022, the Appellant No.1 stood automatically

disqualified as a Member with retrospective effect from the

date of his election, under Section 10-1A of the Panchayats

Act. On 01-03/4/2021, under Rule 17(2) and 17(3) of the

Caste Certificate Rules, the applications were ‘filed’ for not

submitting of the notification of his election. It is pertinent

to note that the said order was never challenged by the

Appellant No.1 and so it has attained finality.

37. To hold that – in spite of the Appellant No.1 not doing

everything required to be done, and which were under his

control to do – his application before the Caste Certificate

Scrutiny Committee was still pending on 10.07.2023 for the

purposes of Section 3 of the Temporary Extension Act,

2023, would be letting the Appellant No.1 take advantage of

his own wrong. It will also go against the object and

purpose of extending the time for production of the Validity

Certificate by further period of twelve months from

10.07.2023.

38. As is clear from Section 3(1), the further period of twelve

months from 10.07.2023 was for those whose applications

were validly filed and pending and where their applications

have been submitted before the date of nomination. Subsection (1)(b) of Section 3 of the Temporary Extension Act,

2023 only revives the membership of those, whose

applications are pending by enacting a deeming provision,

since they are now given a further period of twelve months

from 10.07.2023 to furnish the Validity Certificate. Subsection (2) (b) clearly states that Section 3(1) was not to

apply to members whose applications for Validity Certificate

has been rejected by the Scrutiny Committee.

39. The contention of learned counsel for the Appellant No.1

that there was no rejection and that it was only a “filing” or

“lodgment” of the application on 01-03/04/2021 by the

Scrutiny Committee, does not commend itself to us for

acceptance. The rejection in Section 3(2)(b) will also

include those cases where applications came to be rejected

on account of defaults committed at the end of the

applicants themselves. An applicant who has certain things

under his control ought to have done everything that is

under his control for the purpose of Section 3 of the

Temporary Extension Act, 2023. This would also mean that

Section 3(1) of the Temporary Extension Act, 2023 would

not apply since there was no valid application filed before

the nomination to the Scrutiny Committee and which was

pending. That his application was not pending, was also the

undertaking of the Appellant No.1, as explained

hereinabove. Accepting the contention of the Appellant

No.1 would also amount to putting a premium on the

concession given to a party who was taking the ‘risk’ of

contesting the election by not having a Validity Certificate

on the date of the nomination.

40. For the above reasons, we hold that the Appellant No.1

stood automatically disqualified as a Member since he failed

to produce the Validity Certificate within 12 months from

the date of his election. The protective umbrella of Section 3

of the Temporary Extension Act, 2023 will not be available

to Appellant No.1 since he is hit by Section 3(2)(b), for the

reason that there was no valid application pending on the

date of the commencement of the said Act.

41. Additionally, the application was rejected under Rule 17. No

doubt this cannot be a rejection which will result in the

cancellation of his caste certificate. This is also reinforced

by the fact that the District Caste Certificate Scrutiny

Committee, by its letter dated 14.09.2023, stated that the

Appellant No.1’s application dated 30.12.2020 was

“disposed for non-compliance” and clarifies that his Caste

Certificate dated 03.02.2013 is not invalidated. The

Appellant No.1 may take the benefit of the validity

certificate issued to him on 12.07.2023, pursuant to his

second application of 14.06.2023, for sustaining his Caste

Certificate issued by the Competent Authority on

03.02.2013, for contesting in future elections and for

claiming other concessions as may be available in law.

42. Appellant No.1 has ceased to be a member because of the

automatic disqualification. In view of this, the proceedings

of the Tahsildar dated 19.06.2023 rejecting the No

Confidence Motion on the ground that the voting requirement

of three-fourth of the members “entitled to sit and vote”, was

not fulfilled, cannot be sustained and has rightly been set

aside by the High Court.

43. The net result is that the High Court was right in setting aside

the rejection of the No Confidence Motion and in holding

that the No Confidence Motion against Appellant No. 2-

Sarpanch, was duly carried. The High Court was also

justified in directing that the Appellant No.2 should stop

exercising the powers as a sarpanch and in further directing

that the election for the post of village Sarpanch be notified

afresh. The High Court was justified in quashing the

declaration dated 19.06.2023 declaring that the No

Confidence Motion had failed.

44. We affirm the judgement and order of the High Court dated

20.09.2023 in Writ Petition No. 7924 of 2023. In view of the

above discussion, the Appeal is dismissed. Interim orders

will stand vacated. No order as to costs.

…....…………………J.

(Vikram Nath)

…....…………………J.

(K.V. Viswanathan)

New Delhi;

February 07, 2024.

When the identification of the ornaments by PW-9 becomes doubtful. The prosecution case regarding the recovery of the ornaments at the instance of the appellants also becomes doubtful.

Section 148 of the Indian Penal Code, 1860 (for short, ‘the IPC’), Section 460 read with Section 149 of the IPC and Section 302 read with Section 149 of the IPC. All the five accused were convicted.

2024 INSC 91

Criminal Appeal no.1465 of 2011 Page 1 of 11

Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1465 OF 2011

Kishore & Ors. … Appellants

versus

State of Punjab … Respondent

J U D G M E N T

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. The appellants are the accused nos.2, 3 and 5 – Kishore,

Bala, and Banaras respectively. Five accused faced trial for the

offences punishable under Section 148 of the Indian Penal

Code, 1860 (for short, ‘the IPC’), Section 460 read with Section

149 of the IPC and Section 302 read with Section 149 of the

IPC. All the five accused were convicted. For the offences

punishable under Section 148 of the IPC, they were sentenced

to undergo imprisonment for two years. For the second offence

punishable under Section 460, read with Section 149 of the

IPC, they were sentenced to undergo rigorous imprisonment for

ten years. For the offence punishable under Section 302 read

Criminal Appeal no.1465 of 2011 Page 2 of 11

with Section 149 of the IPC, they were sentenced to undergo

life imprisonment.

2. The accused preferred an appeal before the High Court of

Punjab and Haryana at Chandigarh. By the impugned

judgment dated 27th April 2010, the High Court acquitted the

accused no.1–Raka and the accused no.4–Lakhan but

confirmed the conviction of the present appellants.

3. According to the prosecution case, on the intervening

night of 3rd and 4th July 2003, PW-8 (Khushbir Singh) was

sleeping with his parents Pratap Singh and Gurpal Kaur, in

their bedroom. Khushbir Singh is the complainant. His

brother Satbir Singh and his wife Narinder Kaur (PW-9) were

sleeping in another room. The two daughters of Satbir Singh

and Narinder Kaur were sleeping in another room. PW-8 heard

the cries of his nieces, and therefore, he was awakened from

sleep. According to him, four to five persons who had entered

his house assaulted PW-8, PW-9 and her husband–Satbir

Singh. They broke the locks of the almirah in the house and

took away ornaments and cash. The accused assaulted Pratap

Singh and Gurpal Kaur. Both of them were injured and

succumbed to injuries in the hospital.

SUBMISSIONS

4. The learned counsel appearing for the appellants has

taken us through the evidence of the material prosecution

witnesses. The learned counsel submitted that though the two

eye-witnesses, PW-8 (Khushbir Singh) and PW-9 (Narinder

Criminal Appeal no.1465 of 2011 Page 3 of 11

Kaur), did not know the accused, a test identification parade

was not conducted. The witnesses purported to identify the

accused in the Court for the first time one year after the

incident. Moreover, both the witnesses have not stated that

they had seen any of the accused assaulting the deceased –

Pratap Singh and Gurpal Kaur. The learned counsel pointed

out that the most crucial witnesses, Lovepreet Kaur and

Amritpal Kaur, whose respective ages were 17 and 8 years,

were not examined. The learned counsel pointed out that only

after hearing the shouts of these two girls that PW-8 and PW-9

were awakened. Therefore, the prosecution needed to examine

at least one of them. Secondly, Satbir Singh – the husband of

PW-9 (Narinder Kaur), who was the injured witness, has not

been examined. Inviting our attention to the evidence of PW-8

and PW-9, the learned counsel submitted that their evidence is

entirely doubtful and cannot be believed at all.

5. The learned counsel invited our attention to the evidence

of PW-7, who is a witness to the disclosure statements made

by the accused and the consequent recovery. The ornaments

were recovered based on the disclosure statements of all five

accused. Though recovery was also made from Raka (accused

no.1) and Lakhan (accused no.4), they have been acquitted by

the High Court by the impugned judgment. She pointed out

that PW-7 deposed that the seized ornaments were mixed with

other ornaments for the purposes of identification. He stated

that a goldsmith was called for the identification of ornaments.

However, the goldsmith was not examined. Therefore, serious

Criminal Appeal no.1465 of 2011 Page 4 of 11

doubt is created about the prosecution case regarding the

identification of the stolen ornaments by PW-9.

6. The learned counsel appearing for the respondent–State

of Punjab, urged that both PW-8 and PW-9 had seen the

accused for a sufficiently long time during the incident, and

their examination had been recorded within one year from the

date of the incident. Therefore, the test identification parade

was not necessary at all. He urged that the failure to hold the

test identification parade was not fatal to the prosecution as

the testimony of PW-8 and PW-9 was reliable. The learned

counsel relied upon a decision of this Court in the case of Raju

Manjhi v. State of Bihar1. He submitted that the

eyewitnesses have identified the present appellants and

therefore, no interference is called for.

CONSIDERATION OF SUBMISSIONS

7. We find that as the appellants had undergone sentence

for more than seven years, by the order dated 25th July 2011

of this Court, they have been enlarged on bail till the disposal

of this appeal. We must note here that all the five accused were

convicted for the offence punishable under Section 148 of the

IPC, which is the offence of “rioting, armed with deadly

weapon”. Section 146 of the IPC provides that whenever force

or violence is used by unlawful assembly or by any member

thereof in prosecution of the common object of such assembly,

every member of the unlawful assembly is guilty of the offence

1 (2019) 12 SCC 784

Criminal Appeal no.1465 of 2011 Page 5 of 11

of rioting. Therefore, the condition precedent for attracting

Section 148 of the IPC is that there has to be an unlawful

assembly. Under Section 141 of the IPC, the unlawful

assembly must be of five or more persons. All five accused have

been convicted for the offences punishable under Sections 460

and 302 with the aid of Section 149. Section 149 incorporates

vicarious liability of all the members of an unlawful assembly

for the acts done with a common object. In the present case,

the High Court has acquitted two out of three accused of all

charges. Therefore, we will have to proceed on the footing that

there was no unlawful assembly within the meaning of Section

141 of the IPC. Thus, the conviction under Section 148 of the

IPC cannot be sustained. Even the conviction for the offences

under Sections 460 and 302 with the aid of Section 149 of the

IPC cannot be upheld as there was no unlawful assembly.

Perhaps the High Court could have altered the charge by

applying Section 34 of the IPC, provided there was evidence on

record. But that has not been done.

8. It is true that a test identification parade is not

mandatory. The test identification parade is a part of the

investigation. It is useful when the eyewitnesses do not know

the accused before the incident. The test identification parade

is usually conducted immediately after the arrest of the

accused. Perhaps, if the test identification parade is properly

conducted and is proved, it gives credence of the identification

of the accused by the concerned eyewitnesses before the Court.

Criminal Appeal no.1465 of 2011 Page 6 of 11

The effect of the prosecution's failure to conduct a test

identification parade will depend on the facts of each case.

9. In this case, the evidence of both eyewitnesses was

recorded within one year of the date of the incident. There is

no significant time gap between the date of the incident and the

identification by the witnesses before the Court. If the evidence

of these two witnesses is reliable and inspires confidence, the

conviction can be based on their testimonies.

10. Therefore, we must analyse the testimonies of PW-8 and

PW-9 to ascertain whether their version inspires confidence.

PW-8 (Khushbir Singh) is the son of the deceased Pratap Singh

and Gurpal Kaur. He deposed that his two nieces, Lovepreet

Kaur and Amritpal Kaur (daughters of PW-9 Narinder Kaur),

were sleeping in a room next to the room where he, along with

his deceased parents, were sleeping. PW-8 stated that around

3 to 4 a.m., he heard the cries of his nieces. Thereafter, he

found that there were three to four persons in the house, who

were in the age group of 32 to 35 years. He claimed that the

lights in the house were on. He identified only three accused

(the appellants). The witness claimed that he challenged one

of them, who gave a blow by ‘Sarva’ on his right ear. He stated

that the blow was given by accused no.3-Bala (appellant no.2).

Thereafter, he vaguely stated that his parents challenged the

accused, but they also caused injuries to them as well.

Further, he stated that his brother – Satbir Singh and PW-9

also woke up, and both suffered injuries. However, the witness

has not stated which accused and in what manner, the accused

Criminal Appeal no.1465 of 2011 Page 7 of 11

assaulted his parents (the deceased). There is only one vague

statement that when the deceased challenged them, the

accused caused injuries to them. Thereafter, he stated that

they demanded keys to open the cupboard, and due to the

threat administered by them, the keys were handed over to

them. Later, the accused walked away with cash and

ornaments. In the cross-examination, he reiterated that he

was awakened after hearing the cries of his nieces. He also

accepted that he had not seen the accused before the

occurrence, and therefore, he could not tell the names of the

accused.

11. PW-9 (Narinder Kaur) stated that around 2 to 3 a.m., she

heard the cries of her family members. At that time, the lights

in her house were put on. She stated that two persons entered

her room, and one of them inflicted injuries on her husband–

Satbir Singh. She stated that she received injuries from

accused no.2–Kishore (appellant no.1), and she became

unconscious. After pointing out to accused no.5 – Banaras

(appellant no.3), she stated that he caused injuries to her

husband – Satbir Singh. But she has not stated anything

about the weapon of assault used by them for assault. Then,

she described the ornaments which were taken by the accused.

She deposed that on 22nd October 2003, she identified the

ornaments in the police station in the presence of the

witnesses. In the cross-examination, she was confronted with

her statement recorded under Section 161 of Cr. PC. She

accepted that in the statement, she had not stated that she

Criminal Appeal no.1465 of 2011 Page 8 of 11

could identify the accused. Her explanation was that no such

question was put to her. She stated that she had not seen the

accused before the occurrence of the incident. She stated that

the ornaments produced in the Court could be procured from

Sarafa Bazaar, and she had not given any specific mark of

identity on the ornaments except stones.

12. Thus, PW-9 has not even stated that she had seen any of

the accused assaulting the deceased. As pointed out earlier,

even the version of PW-8 is very vague about the accused

assaulting the deceased. Another important aspect is that PW8 stated that he was awakened due to the cries of his nieces,

Lovepreet Kaur and Amritpal Kaur. Though he accepted that

Lovepreet Kaur was 16 to 17 years old, the prosecution has not

examined Lovepreet Kaur. Similarly, Satbir Singh, husband of

PW-9, who was the injured witness, has not been examined.

The prosecution has not come out with any reason for not

examining these two vital witnesses. It is very difficult to

connect any accused with the injuries sustained by the

deceased in the absence of any cogent evidence. Therefore, it

is not possible to uphold the conviction for the offence

punishable under Section 302 of the IPC.

13. At the highest, from their evidence, it can be deduced that

accused no.3–Bala caused injuries to PW-8, accused no.5–

Banaras assaulted PW-9’s husband and accused no.2 –

Kishore assaulted PW-9. As far as Satbir Singh is concerned,

PW-1 has deposed that injury no.1 (lacerated wound

measuring 6cm×2cm on the posterior carpel of the left ear and

Criminal Appeal no.1465 of 2011 Page 9 of 11

to the pinna) was dangerous. However, he has not deposed

about any fracture suffered by him. As far as PW-9 is

concerned, she suffered a horizontal fracture of the temporal

bone. As regards PW-8, PW-1 has not deposed that he suffered

any fracture. He deposed about the wound on the right ear

pinna and lacerated wound measuring 4cm×0.6 cm on the

back of the base of the right ear. In the absence of the charge

under Section 34 of the IPC, at the highest, accused Banaras

and Bala could have been convicted of the offence punishable

under Section 323 of the IPC and accused no.2–Kishore could

have been held to be guilty of the offences punishable under

Section 326 of the IPC. However, all of them have undergone

sentences of more than seven years, which is more than what

can be imposed for these offences in the facts of this case.

Therefore, in any case, they will have to be let off.

14. Now, we turn to the evidence of recovery of ornaments.

Two of the five accused from whom the recovery was made,

have been exonerated by the High Court. PW-7 (ASI Ajaib

Singh) deposed that PW-9 identified the recovered ornaments

from the other ornaments which were arranged through MHC.

In the cross-examination, he stated that the other ornaments

were arranged by a goldsmith and were mixed with the

ornaments recovered at the instance of the accused. However,

he stated that he was not aware of the fact how MHC had

procured the said ornaments. The examination of the

goldsmith or the person from whom the other ornaments were

brought was necessary to prove that the ornaments were

Criminal Appeal no.1465 of 2011 Page 10 of 11

identical to the ones recovered at the instance of the accused.

But that was not done. Therefore, even the identification of the

ornaments by PW-9 becomes doubtful. The prosecution case

regarding the recovery of the ornaments at the instance of the

appellants also becomes doubtful.

15. Moreover, as regards the offence punishable under

Section 460 of the IPC, there was no specific role attributed to

any of the accused by PW-8 and PW-9, and all of them have

been convicted only with the aid of Section 149 of the IPC. It

is established that there was no unlawful assembly as two out

of five accused have been acquitted. The High Court could have

altered the charge by applying Section 34 instead of Section

149 of the IPC, but that was not done. Now, twenty-one years

after the incident, at this stage, we cannot modify or alter the

charge, especially when all three appellants accused have

undergone incarceration for more than seven years. Even if we

do that, even otherwise, the prosecution has failed to prove the

commission of the offence.

16. Accordingly, the appeal must succeed. We set aside the

impugned judgment and order dated 27th April 2010 of the

High Court of Punjab and Haryana at Chandigarh rendered in

the Criminal Appeal no.197-DB of 2009 and the impugned

judgment and order passed in SC No.32/T dated 20th February

2004 by the Additional Sessions Judge, Patiala on 12th January

2009 insofar as the present appellants are concerned and

acquit them of the charges framed against them. As the

Criminal Appeal no.1465 of 2011 Page 11 of 11

appellants are presently on bail, their bail bonds stand

cancelled.

17. The appeal is, accordingly, allowed.

….…………………….J.

(Abhay S. Oka)

…..…………………...J.

(Ujjal Bhuyan)

New Delhi;

February 7, 2024.

, mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail. Hence, the aforesaid argument on the behalf the appellant cannot be accepted.

d seeking regular bail in NIA Case RC.19/2020/NIA/DLI, registered under Sections 124A, 153A, 153B, 120-B of the Indian Penal Code, 1860 2 (IPC), Section(s) 17, 18, 19 of the Unlawful Activities (Prevention) Act, 1967 (UAP Act) and Sections 25 and 54 of the Arms Act, 1959, which came to be rejected.

2024 INSC 92

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.704 of 2024

(@ SPECIAL LEAVE PETITION (CRIMINAL) No.10047 of 2023)

GURWINDER SINGH …APPELLANT

VERSUS

STATE OF PUNJAB & ANOTHER ...RESPONDENTS

JUDGEMENT

Aravind Kumar J.

1. Leave granted.

2. The present appeal impugns the order dated 24.04.2023 passed by

the High Court of Punjab and Haryana at Chandigarh in CRA-D No. 144 of

2022 (O&M) whereby the High Court has upheld the order dated 16.12.2021

passed by the Special Judge, NIA Court, SAS Nagar, Mohali in an

application filed under Section 439 of the Code of Criminal Procedure, 1973

(Cr.P.C) filed by the Appellant herein-Gurwinder Singh along with other coaccused seeking regular bail in NIA Case RC.19/2020/NIA/DLI, registered

under Sections 124A, 153A, 153B, 120-B of the Indian Penal Code, 1860

(IPC), Section(s) 17, 18, 19 of the Unlawful Activities (Prevention) Act,

1967 (UAP Act) and Sections 25 and 54 of the Arms Act, 1959, which came

to be rejected.

3. The factual matrix relevant to dispose the present petition are

summarized as under:

3.1 On 19.10.2018, Sh. Varinder Kumar, Inspector, CIA Staff, received

secret information that two persons are hanging cloth banners on which

“Khalistan Jindabad” and “Khalistan Referendum 2020”, was written, at

Pillars Kot Mit Singh Flyover, Amritsar. The Police team apprehended one

Sukhraj Singh @ Raju and Malkeet Singh @ Meetu on the spot and a case

was registered vide FIR No.152 dated 19.10.2018 under section(s) 124A,

153A, 153B and 120B of IPC against both the arrested accused. During the

course of Investigation, entire module of the banned terrorist organization

named “Sikh for Justice” was busted and other accused persons involved in

the said module namely, Bikramjit Singh @ Vicky, Manjit Singh @ Manga,

Jatinder Singh @ Goldy, Harpreet Singh @ Happy, Gurwinder Singh @

Gurpreet Singh @ Gopi-the present Appellant, Harmeet Singh @ Raju,

Roofel @ Raful @ Rahul Gill, Sukhmander Singh @ Gopi and Kuldeep

Singh @ Kuldip Singh @ Keepa were arrested by Punjab Police.

3.2 The investigation was completed and final report was presented on

16.04.2019 before the Trial Court against eleven accused persons under

Sections 117, 112, 124A, 153A, 153B, 120-B of IPC, Sections 17, 18, 19 of

UAP Act and Section 25 of Arms Act. On further investigation, the police

submitted supplementary reports.

3.3 Due to degree of severity in the charges involved, the investigation

in the present matter was transferred to the National Investigation Agency

(NIA), which took over the investigation of this case as per the directions of

Government of India, Ministry of Home Affairs issued vide Order

F.No.11011/30/2020/NIA dated 04.04.2020 and registered the original case

as RC.19/2020/NIA/DLI dated 05.04.2020. 3rd supplementary chargesheet

was filed by NIA dated 18.12.2020 and Charges were framed by the Learned

Special Judge, NIA Punjab on 09.12.2021.

3.4 The investigation revealed that the accused persons received funds

through illegal means sent by members of the banned terrorist organization

“Sikhs For Justice”, those funds were channeled through illegal means such

as “Hawala” and were sent to be used for furthering separatist ideology of

demanding a separate State for Sikhs popularly called “Khalistan”, and to

carry out terror activities and other preparatory acts i.e., attempts to procure

weapons to spread terror in India in furtherance of such separatist

movement. The investigation further revealed the hand of an ISI handler

named Javed Khan, to be behind the operations of this module busted by

Punjab Police and NIA.

3.5 The prima facie involvement of the present Appellant has cropped

up in the disclosure statement of the co-accused Bikramjit Singh @ Vicky

(Accused No. 3) recorded on 09.06.2020 while he was in the custody of

NIA.

3.6 The said disclosure statement revealed that on 08.07.2018, the

Appellant herein-Gurwinder Singh accompanied Bikramjit Singh (Accused

No. 3) and Harpreet Singh @Happy (Accused No.7) to Srinagar in a car

where they had planned to purchase a pistol. There they met Sandeep Singh

@ Sana and further went to a JK-Li Camp in Srinagar. Sandeep Singh

entered the Army camp and after half an hour he came out and stated that

pistol was not available. Then they came back to Gurudwara Sahib, where

Sandeep offered them to purchase RDX instead, but they declined and all

three returned back to Punjab, where Bikramjit Singh (Accused No. 3) was

dropped off mid-way at Jandialaguru while both, the present Appellant and

Harpreet Singh @ Happy, returned back to their village in Punjab.

3.7 The Appellant’s disclosure statement recorded on 12.06.2020

revealed a similar story as that of Bikramjit Singh. The Appellant stated that

he and Harpreet Singh were childhood friends. In the 1

st week of July 2018,

Harpreet proposed to visit Srinagar for Religious Service and asked the

Appellant to accompany. The Appellant in his disclosure statement further

stated that he initially denied to go with them however later agreed to

accompany them when Harpreet Singh continuously insisted him.

3.8 The trial court vide its order dated 16.12.2023 in CIS No.

BA/2445/2021 dismissed the Appellant’s bail application under Section 439

CrPC on the ground that there were reasonable grounds to believe the

accusation against the Appellant to be true. The said order was impugned by

way of an appeal before the High Court of Punjab and Haryana and

meanwhile on 10.04.2023, 4

th supplementary charge sheet was filed by NIA

along with the List of witnesses and list of documents.

3.9 Vide the Impugned order the High Court rejected the grant of bail to

Appellant on the ground ofseriousness of the nature of offence and that none

of the protected witnesses had been examined.

SUBMISSION ON BEHALF OF THE PARTIES

4. The Learned Senior Counsel, Mr. Colin Gonsalves, appearing on

behalf of the Appellant made the following submissions in support of the

Appellant's bail application:

5. Mr. Gonsalves, learned Senior Counsel contended that the Appellant

has been denied bail by the Hon’ble High Court and the Ld. Special Judge

by relying upon the disclosure statement of Bikramjit Singh alias Vicky and

argued that the said disclosure statement cannot be used to implicate the

present Appellant.

6. Learned Senior Counsel further raised contentions about the lack of

scrutiny of the Appellant's mobile phone, marked as M-4 to indicate that the

phone number did not belong to the Appellant. He argued that the absence

of incriminating conversations in the Communication Data Records (CDR)

related to the Appellant's phone supports the case for bail. He further

contended that the Appellant has been in custody since the last Five years

facing charges of UAP Act which is contrary to the law laid down in KA

Najeeb v. Union of India.1

7. He further submitted that only 19 out of 106 witnesses have been

examined in the last five-year period. He also drew our attention to terror

funding chart to demonstrate that the name of the Appellant does not find

place in the same. Mr. Gonsalves also questioned the omission of the alleged

main conspirator, Nihal Singh, as an accused, emphasizing that the

Appellant did not procure any weapons.

8. He further sought our attention to the 4th supplementary

chargesheet, aimed at establishing a funding link with ISI, to illustrate the

(2021) 3 SCC 713

Appellant's exclusion from relevant documentation. Lastly, he stated that out

of Nine protected witnesses that have been examined, eight have not

mentioned the name of Appellant. Hence, he prayed to set aside the

impugned order and grant bail to the Appellant.

9. Per contra, Mr. Suryaprakash V. Raju, learned Additional Solicitor

General, on behalf of the Respondent, submitted that there is sufficient

evidence on record to prove the incriminating role of the Appellant and the

same is revealed by the statements of Protected witnesses.

10. He further submitted that the Appellant-accused along with coaccused Bikarmjit Singh @ Vicky (Accused No. 3) were involved in the

activities of “Sikhs for Justice”, a banded terrorist organisation, whose chief

proponent is Gurpatwant Singh Pannu (Accused No. 12) and Bikramjit

Singh @ Vicky (Accused No. 3) had asked their known persons to arrange

weapons from Kashmir. In furtherance of their activities to procure arms

and ammunition, the Appellant-accused along with co-accused Bikarmjit

Singh @ Vicky and Harpreet Singh @ Happy (Accused No. 7) had visited

Srinagar.

11. He further submitted that Appellant in his voluntary disclosure

statement admitted that on gaining knowledge of purpose of visit to

Srinagar, he voluntarily continued the journey. In fact, the Appellant

suggested an alternative to the co-accused and advised them to procure the

weapon from Western Uttar Pradesh.

12. Further, he submitted that the provisions of section 43D(5) of

Unlawful Activities (Prevention) Act, 1967 are completely applicable in this

case and as such the High court has rightly denied bail to the Appellantaccused.

13. He also contended that the case is presently under trial and so far 22

witnesses have been examined. The accused is facing charges of grave

nature pertaining to crimes that are not attributable to an individual but

members of a terrorist gang operating at the behest of Gurpatwant Singh

Pannu (Accused No. 12), a proscribed terrorist. If the Appellant is released

on bail, there is every likelihood that he will influence the key witnesses of

the case hampering the process of justice. Hence, he prayed that the bail

petition should be rejected.

DISCUSSION AND CONCLUSION

14. We have heard the learned counsel on behalf of both the parties and

have perused the records of the case. The present case involves the charges

under the UAP Act along with other charges under the IPC and Arms Act

therefore, it is apt to consider the bail provision envisaged undersection 43D

of the UAP Act before we delve to analyze the facts.

Bail under UAP Act: Section 43D (5)

15. In the course of oral argument, both sides have laid great

emphasis on the interpretation of section 43D(5) of the 1967 Act. We

will begin our analysis with a discussion on the scope and limitations of bail

under Section 43D(5) UAP Act.

We shall extract Section 43D(5) for easy reference:

"Section 43D - Modified application of certain provisions of the

Code

(1)......

................

(5) Notwithstanding anything contained in the Code, no person

accused of an offence punishable under Chapters IV and VI of

this Act shall, if in custody, be released on bail or on his own

bond unless the Public Prosecutor has been given an

opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail

or on his own bond if the Court, on a perusal of the case diary

or the report made under section 173 of the Code is of the

opinion that there are reasonable grounds for believing that the

accusation against such person is prima facie true.

(6) The restrictions on granting of bail specified in sub-section

(5) is in addition to the restrictions under the Code or any other

law for the time being in force on granting of bail.

(7) Notwithstanding anything contained in Sub-sections (5) and

(6), no bail shall be granted to a person accused of an offence

punishable under this Act, if he is not an Indian citizen and has

entered the country unauthorizedly or illegally except in very

exceptional circumstances and for reasons to be recorded in

writing."

16. The source of the power to grant bail in respect of non-bailable

offences punishable with death or life imprisonment emanates from Section

439 CrPC. It can be noticed that Section 43D(5) of the UAPAct modifies the

application of the general bail provisions in respect of offences punishable

under Chapter IV and Chapter VI of the UAP Act.

17. A bare reading of Sub-section (5) of Section 43D shows that apart

from the fact that Sub-section (5) bars a Special Court from releasing an

accused on bail without affording the Public Prosecutor an opportunity of

being heard on the application seeking release of an accused on bail, the

proviso to Sub-section (5) of Section 43D puts a complete embargo on the

powers of the Special Court to release an accused on bail. It lays down that

if the Court, ‘on perusal of the case diary or the report made under Section

173 of the Code of Criminal Procedure’, is of the opinion that there are

reasonable grounds for believing that the accusation, against such person, as

regards commission of offence or offences under Chapter IV and/or Chapter

VI of the UAP Act is prima facie true, such accused person shall not be

released on bail or on his own bond. It is interesting to note that there is no

analogous provision traceable in any otherstatute to the one found in Section

43D(5) of the UAPAct. In that sense, the language of bail limitation adopted

therein remains unique to the UAP Act.

18. The conventional idea in bail jurisprudence vis-à-vis ordinary penal

offences that the discretion of Courts must tilt in favour of the oft-quoted

phrase - ‘bail is the rule, jail is the exception’ – unless circumstances justify

otherwise - does not find any place while dealing with bail applications

under UAP Act. The ‘exercise’ of the general power to grant bail under the

UAP Act is severely restrictive in scope. The form of the words used in

proviso to Section 43D (5)– ‘shall not be released’in contrast with the form

of the words as found in Section 437(1) CrPC - ‘may be released’– suggests

the intention of the Legislature to make bail, the exception and jail, the rule.

19. The courts are, therefore, burdened with a sensitive task on hand. In

dealing with bail applications under UAP Act, the courts are merely

examining if there is justification to reject bail. The ‘justifications’ must be

searched from the case diary and the final report submitted before the

Special Court. The legislature has prescribed a low, ‘prima facie’ standard,

as a measure of the degree of satisfaction, to be recorded by Court when

scrutinising the justifications [materials on record]. This standard can be

contrasted with the standard of ‘strong suspicion’, which is used by Courts

while hearing applications for ‘discharge’. In fact, the Supreme Court in

Zahoor Ali Watali2 has noticed this difference, where it said:

(2019) 5 SCC 1

“In any case, the degree of satisfaction to be recorded by the

Court for opining that there are reasonable grounds for

believing that the accusation against the accused is prima facie

true, is lighter than the degree of satisfaction to be recorded for

considering a discharge application or framing of charges in

relation to offences under the 1967 Act.”

20. In this background, the test for rejection of bail is quite plain. Bail

must be rejected as a ‘rule’, if after hearing the public prosecutor and after

perusing the final report or Case Diary, the Court arrives at a conclusion that

there are reasonable grounds for believing that the accusations are prima

facie true. It is only if the test for rejection of bail is not satisfied – that the

Courts would proceed to decide the bail application in accordance with the

‘tripod test’ (flight risk, influencing witnesses, tampering with evidence).

This position is made clear by Sub-section (6) of Section 43D, which lays

down that the restrictions, on granting of bail specified in Sub-section (5),

are in addition to the restrictions under the Code of Criminal Procedure or

any other law for the time being in force on grant of bail.

21. On a textual reading of Section 43 D(5) UAP Act, the inquiry that a

bail court must undertake while deciding bail applications under the UAP

Act can be summarised in the form of a twin-prong test :

1) Whether the test for rejection of the bail is satisfied?

1.1 Examine if, prima facie, the alleged ‘accusations’

make out an offence under Chapter IV or VI of the UAP

Act

1.2 Such examination should be limited to case diary

and final report submitted under Section 173 CrPC;

2) Whether the accused deserves to be enlarged on bail

in light of the general principles relating to grant of bail

under Section 439 CrPC (‘tripod test’)?

On a consideration of various factors such as nature of offence, length of

punishment (if convicted), age, character, status of accused etc., the Courts

must ask itself :

2.1 Whether the accused is a flight risk?

2.2. Whether there is apprehension of the accused

tampering with the evidence?

2.3 Whether there is apprehension of accused

influencing witnesses?

22. The question of entering the ‘second test’of the inquiry will not arise

if the ‘first test’is satisfied. And merely because the first test is satisfied, that

does not mean however that the accused is automatically entitled to bail. The

accused will have to show that he successfully passes the ‘tripod test’.

Test for Rejection of Bail: Guidelines as laid down by Supreme Court

in Watali’s Case

23. In the previous section, based on a textual reading, we have

discussed the broad inquiry which Courts seized of bail applications under

Section 43D(5) UAPAct r/w Section 439 CrPC must indulge in. Setting out

the framework of the law seems rather easy, yet the application of it, presents

its own complexities. For greater clarity in the application of the test set out

above, it would be helpful to seek guidance from binding precedents. In this

regard, we need to look no further than Watali’s case which has laid down

elaborate guidelines on the approach that Courts must partake in, in their

application of the bail limitations under the UAP Act. On a perusal of

paragraphs 23 to 29 and 32, the following 8-point propositions emerge and

they are summarised as follows:

• Meaning of ‘Prima facie true’ [para 23]: On the face of it, the materials

must show the complicity of the accused in commission of the offence. The

materials/evidence must be good and sufficient to establish a given fact or

chain of facts constituting the stated offence, unless rebutted or contradicted

by other evidence.

• Degree of Satisfaction at Pre-Chargesheet, Post Chargesheet and PostCharges – Compared [para 23]: Once charges are framed, it would be safe

to assume that a very strong suspicion was founded upon the materials

before the Court, which prompted the Court to form a presumptive opinion

as to the existence of the factual ingredients constituting the offence alleged

against the accused, to justify the framing of charge. In that situation, the

accused may have to undertake an arduous task to satisfy the Court that

despite the framing of charge, the materials presented along with the chargesheet (report under Section 173 CrPC), do not make out reasonable grounds

for believing that the accusation against him is prima facie true. Similar

opinion is required to be formed by the Court whilst considering the prayer

for bail, made after filing of the first report made under Section 173 of the

Code, as in the present case.

•Reasoning, necessary but no detailed evaluation of evidence [para 24]:

The exercise to be undertaken by the Court at this stage--of giving reasons

for grant or non-grant of bail--is markedly different from discussing merits

or demerits of the evidence. The elaborate examination or dissection of the

evidence is not required to be done at this stage.

•Record a finding on broad probabilities, not based on proof beyond

doubt [para 24]: “The Court is merely expected to record a finding on the

basis of broad probabilities regarding the involvement of the accused in the

commission of the stated offence or otherwise.”

•Duration of the limitation under Section 43D(5) [para 26]: The special

provision, Section 43-D of the 1967 Act, applies right from the stage of

registration of FIR for the offences under Chapters IV and VI of the 1967

Act until the conclusion of the trial thereof.

•Material on record must be analysed as a ‘whole’; no piecemeal

analysis [para 27]: The totality of the material gathered by the investigating

agency and presented along with the report and including the case diary, is

required to be reckoned and not by analysing individual pieces of evidence

or circumstance.

•Contents of documents to be presumed as true [para 27]: The Court must

look at the contents of the document and take such document into account as

it is.

•Admissibility of documents relied upon by Prosecution cannot be

questioned [para 27]: The materials/evidence collected by the investigation

agency in support of the accusation against the accused in the first

information report must prevail until contradicted and overcome or

disproved by other evidence…….In any case, the question of discarding the

document at this stage, on the ground of being inadmissible in evidence, is

not permissible.

24. It will also be apposite at thisjuncture to refer to the directionsissued

in Devender Gupta v. National Investigating Agency3 wherein a Division

Bench of the High Court of Andhra Pradesh strove to strike a balance

3 2014 (2) ALD Cri. 251

between the mandate under Section 43D on one hand and the rights of the

accused on the other. It was held as follows:

"The following instances or circumstances, in our view, would

provide adequate guidance for the Court to form an opinion, as

to whether the accusation in such cases is "prima facie true":

1) Whether the accused is/are associated with any organization,

which is prohibited through an order passed under the provisions

of the act;

2) Whether the accused was convicted of the offenses involving such

crimes, or terrorist activities, or though acquitted on technical

grounds; was held to be associated with terrorist activities;

3) Whether any explosive material, of the category used in the

commission of the crime, which gave rise to the prosecution; was

recovered from, or at the instance of the accused;

4) Whether any eye witness or a mechanical device, such as CC

camera, had indicated the involvement, or presence of the

accused, at or around the scene of occurrence; and

5) Whether the accused was/were arrested, soon after the

occurrence, on the basis of the information, or clues available with

the enforcement or investigating agencies."

25. In the case of Kekhriesatuo Tep and Ors. v. National Investigation

Agency4

the Two-Judge Bench (Justice B.R. Gavai & Justice Sanjay Karol)

while dealing with the bail application for the offence of supporting and

raising funds for terrorist organization under section 39 and 40 of the UAP

Act relied upon NIA v. Zahoor Ahmad Shah Watali5

and observed that:

“while dealing with the bail petition filed by the accused against

whom offences under chapter IV and VI of UAPA have been

made, the court has to consider as to whether there are

(2023) 6 SCC 58

(2019) 5 SCC 1

reasonable grounds for believing that the accusation against the

accused is prima facie true. The bench also observed that

distinction between the words “not guilty” as used in TADA,

MCOCA and NDPS Act as against the words “prima facie” in

the UAPA as held in Watali’s Case (supra) to state that a degree

of satisfaction required in the case of “not guilty” is much

stronger than the satisfaction required in a case where the words

used are “prima facie”

26. In the case of Sudesh Kedia v. Union of India6

the Bench of Justice

Nageswara Rao and Justice S. Ravindra Bhat while dealing with a bail

application for the offence u/s. 17, 18 and 21 of the UAP Act relied upon

the principle propounded in Watali’s case (supra) and observed that:

“the expression “prima facie” would mean that the

materials/evidence collated by the investigating agency in

reference to the accusation against the accused concerned must

prevail until contradicted and overcome or disproved by other

evidence, and on the face of it, shows that complicity of such

accused in the commission of the stated offence. It must be good

and sufficient on its face to establish a given fact or the chain of

facts constituting the stated offence, unless rebutted or

contradicted.”

27. In the light of these guiding principles, we shall now proceed to

decide whether the additional limitations found in Section 43D(5) UAPAct

are attracted in the facts of the present case. In other words, we shall inquire

if the first test (as set out above), i.e., test for rejection of bail, is satisfied.

For this purpose, it will, firstly, have to be examined whether the

allegations/accusations against the Appellants contained in charge-sheet

(2021) 4 SCC 704

documents and case diary, prima facie, disclose the commission of an

offence Section 17,18 and 19 of the UAP Act.

Section 17 of the UAP Act states:

17. Punishment for raising funds for terrorist act. —Whoever,

in India or in a foreign country, directly or indirectly, raises or

collects funds or provides funds to any person or persons or

attempts to provide funds to any person or persons, knowing that

such funds are likely to be used by such person or persons to

commit a terrorist act, notwithstanding whether such funds were

actually used or not for commission of such act, shall be

punishable with imprisonment for a term which shall not be less

than five years but which may extend to imprisonment for life, and

shall also be liable to fine.

Section 18 of the UAP Act states:

18. Punishment for conspiracy, etc.—Whoever conspires or

attempts to commit, or advocates, abets, advises or [incites,

directly or knowingly facilitates] the commission of, a terrorist

act or any act preparatory to the commission of a terrorist act,

shall be punishable with imprisonment for a term which shall not

be less than five years but which may extend to imprisonment for

life, and shall also be liable to fine.

Section 19 of the UAP Act states:

19. Punishment for harbouring, etc.—Whoever voluntarily

harbours or conceals, or attempts to harbour or conceal any

person knowing that such person is a terrorist shall be punishable

with imprisonment for a term which shall not be less than three

years but which may extend to imprisonment for life, and shall

also be liable to fine: Provided that this section shall not apply to

any case in which the harbour or concealment is by the spouse of

the offender.”

28. Having examined the provisions of law, let us now consider the

material available on record to ascertain whether the case of the Appellant

satisfies the tests as mentioned herein above.

29. The Appellant's counsel contended that the Appellant's mobile

phone has not undergone scrutiny, and therefore, no conclusive connection

to the charged offenses could be established. However, the scrutiny report

of Bikramjit Singh @ Vicky’s (Accused No. 3) mobile phone, marked as

M-5 reveals at serial no. 10, that the present Appellant was in

communication with Accused No.3 multiple times. The Call Detail Records

(CDRs) unveils a consistent pattern of communication between the

Appellant and Bikramjit Singh (Accused No.3) even prior to their trip to

Srinagar for procurement of weapons. Detailed scrutiny of the CDRs

indicates that the Appellant had engaged in communication with Bikramjit

Singh (Accused No.3) approximately 26 times, spanning from June 22,

2018 to October 19, 2018, the day of his arrest.

30. The Appellant’s counsel has objected to the denial of bail by the

High Court and Special Court upon relying on the disclosure statements of

Bikarmjit Singh @ Vicky (Accused No.3) and the Appellant himself.

Accused No.3 in his disclosure statement (Annexure P3) has stated that on

08.07.2018, he along with Harpreet Singh @ Happy and Gurwinder Singh

@ Gurpreet Singh Gopi (the present Appellant) went to Srinagar for the

purchase of pistol which was sought to be used by them to take revenge of

the Sacrilege of Guru Granth Sahib. Further, the disclosure Statement of the

present Appellant (Annexure P4) corroborated the disclosure Statement of

Accused No.3 wherein he stated that he went with Accused No.3 and

Harpreet Singh @ Happy to Srinagar. Though the present Appellant has

taken the stance of not knowing the purpose of the visit to Srinagar, in his

disclosure statement, he has admitted to the fact that he suggested both

Bikramjit Singh (Accused No.3) and Harpreet Singh (Accused No.7) to

purchase the weapon from western Uttar Pradesh.

31. The Appellant’s counsel has stated that in the terror funding chart

the name of the Appellant does not find place. It is pertinent to mention that

the charges in the present case reveals the involvement of a terrorist gang

which includes different members recruited for multiple roles. Hence, the

mere fact that the accused has not received any funds or nothing

incriminating was recovered from his mobile phone does not absolve him

of his role in the instant crime.

32. The Appellant’s counsel has relied upon the case of KA Najeeb

(supra) to back its contention that the appellant has been in jail for last five

years which is contrary to law laid down in the said case. While this

argument may appear compelling at first glance, it lacks depth and

substance. In KA Najeeb’s case this court was confronted with a

circumstance wherein except the respondent-accused, other co-accused had

already undergone trial and were sentenced to imprisonment of not

exceeding eight years therefore this court’s decision to consider bail was

grounded in the anticipation of the impending sentence that the respondentaccused might face upon conviction and since the respondent-accused had

already served portion of the maximum imprisonment i.e., more than five

years, this court took it as a factor influencing its assessment to grant bail.

Further, in KA Najeeb’s case the trial of the respondent-accused was

severed from the other co-accused owing to his absconding and he was

traced back in 2015 and was being separately tried thereafter and the NIA

had filed a long list of witnesses that were left to be examined with

reference to the said accused therefore this court was of the view of

unlikelihood of completion of trial in near future. However, in the present

case the trial is already under way and 22 witnesses including the protected

witnesses have been examined. As already discussed, the material available

on record indicates the involvement of the appellant in furtherance of

terrorist activities backed by members of banned terrorist organization

involving exchange of large quantum of money through different channels

which needs to be deciphered and therefore in such a scenario if the

appellant is released on bail there is every likelihood that he will influence

the key witnesses of the case which might hamper the process of justice.

Therefore, mere delay in trial pertaining to grave offences as one involved

in the instant case cannot be used as a ground to grant bail. Hence, the

aforesaid argument on the behalf the appellant cannot be accepted.

33. Hence, we are of the considered view that the material on record

prima facie indicates the complicity of the accused as a part of the

conspiracy since he was knowingly facilitating the commission of a

preparatory act towards the commission of terrorist act under section 18 of

the UAP Act.

34. For the aforementioned reasons the bail application of the

Appellant is rejected and consequently the appeal fails. Needless to say,

that any observation made hereinabove is only for the purpose of deciding

the present bail application and the same shall not be construed as an

expression on the merits of the matter before the trial court.

….………………….J.

(M.M. Sundresh)

…….……………….J.

(Aravind Kumar)

New Delhi,

February 07, 2024

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Friday, February 9, 2024

When the identification of the ornaments by PW-9 becomes doubtful. The prosecution case regarding the recovery of the ornaments at the instance of the appellants also becomes doubtful.

, mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail. Hence, the aforesaid argument on the behalf the appellant cannot be accepted.