Delay – Non-condonation of – Length of the delay, relevant – Decree for possession of the suit premises was passed in favour of respondent in 1987 – Appeal thereagainst filed by appellants-Union of India, dismissed in 1992 – Said order of the appellate court was challenged by the appellants by filing Writ Petition in 1993 which was dismissed for non-prosecution in 2006 – Respondent filed Execution Petition in 2013 – Later, appellants filed application seeking restoration of the Writ Petition filed in 1993 and for condonation of delay of 12 years and 158 days in preferring such restoration application – Impugned order passed by High Court declining to condone the said delay – Correctness:

* Author

[2024] 4 S.C.R. 76 : 2024 INSC 262

Union of India & Anr.

v.

Jahangir Byramji Jeejeebhoy (D) Through His LR

(Civil Appeal No. 4672 of 2024)

03 April 2024

[Aniruddha Bose and J.B. Pardiwala,* JJ.]

Issue for Consideration

Whether the High Court committed any error in passing the

impugned order by which it declined to condone the delay of 12

years and 158 days in filing the restoration application by appellantsUnion of India for restoration of the Writ Petition.

Headnotes

Delay – Non-condonation of – Length of the delay, relevant

– Decree for possession of the suit premises was passed in

favour of respondent in 1987 – Appeal thereagainst filed by

appellants-Union of India, dismissed in 1992 – Said order of

the appellate court was challenged by the appellants by filing

Writ Petition in 1993 which was dismissed for non-prosecution

in 2006 – Respondent filed Execution Petition in 2013 – Later,

appellants filed application seeking restoration of the Writ

Petition filed in 1993 and for condonation of delay of 12 years

and 158 days in preferring such restoration application –

Impugned order passed by High Court declining to condone

the said delay – Correctness:

Held: Length of the delay is a relevant matter which the court

must take into consideration while considering whether the delay

should be condoned or not – Once it is held that a party has lost his

right to have the matter considered on merits because of his own

inaction for long, delay cannot be presumed to be non-deliberate

and thus, he cannot be heard to plead that the substantial justice

deserves to be preferred as against the technical considerations

– Further, while considering the plea for condonation of delay, the

court must not start with the merits of the main matter – Court

owes a duty to first ascertain the bona fides of the explanation

offered by the party seeking condonation – It is only if the sufficient

cause assigned by the litigant and the opposition of the other side

is equally balanced that the court may bring into aid the merits 

[2024] 4 S.C.R. 77

Union of India & Anr. v.

Jahangir Byramji Jeejeebhoy (D) Through His LR

of the matter for the purpose of condoning the delay – Question

of limitation is not merely a technical consideration – Rules of

limitation are based on the principles of sound public policy and

principles of equity – It hardly matters whether a litigant is a private

party or a State or Union of India when it comes to condoning the

gross delay of more than 12 years – In the present case, litigation

between the parties started sometime in 1981 – Almost 43 years

have elapsed however, till date the respondent has not been able

to reap the fruits of his decree – Appellants failed to prove that

they were reasonably diligent in prosecuting the matter and this

vital test for condoning the delay is not satisfied in this case – No

error committed by High Court in passing the impugned order.

[Paras 26, 27, 25, 34]

Case Law Cited

Oriental Aroma Chemical Industries Limited v. Gujarat

Industrial Development Corporation [2010] 2 SCR 1172 :

(2010) 5 SCC 459; Postmaster General and others v.

Living Media India Limited [2012] 1 SCR 1045 : (2012)

3 SCC 563; Lanka Venkateswarlu (D) by LRs v. State of

Andhra Pradesh & others [2011] 3 SCR 217 : (2011) 4

SCC 363; Pundlik Jalam Patil (D) by LRs. v. Executive

Engineer, Jalgaon Medium Project & others [2008] 15

SCR 135 : (2008) 17 SCC 448; Esha Bhattacharjee v.

Managing Committee of Raghunathpur Nafar Academy

& Others [2013] 9 SCR 782 : (2013) 12 SCC 649 –

relied on.

List of Keywords

Limitation; Gross delay; Delay condonation; Sufficient cause; Length

of the delay; Principles of equity.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No.4672 of 2024

From the Judgment and Order dated 09.07.2019 of the High Court

of Judicature at Bombay in CA No. 1494 of 2019

Appearances for Parties

R.Venkataramani, AG, Vikramjit Banerjee, ASG, Col. R.

Balasubramanian, Sr. Adv., Chinmayee Chandra, Chitvan Singhal, 

78 [2024] 4 S.C.R.

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Abhishek Kumar Pandey, Arvind Kumar Sharma, Advs. for the

Appellants.

Sudhanshu Chaudhari, Sr. Adv., Ms. Supreeta Sharanagouda,

Sharanagouda Patil, Mahesh P Shindhe, Ms. Rucha A Pande,

Veeraragavan M, C Sawant, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

J.B. Pardiwala, J.

Leave granted.

2. This appeal arises from an order passed by a learned single Judge

of the High Court of Judicature at Bombay dated 09.07.2019 in Civil

Application No. 1494 of 2019 filed in Writ Petition No. 2307 of 1993

by which the High Court declined to condone the delay of 12 years

and 158 days in filing the application for restoration of the Writ Petition

No. 2307 of 1993 referred to above which came to be dismissed for

non-prosecution vide order dated 10.10.2006.

3. The facts giving rise to this appeal may be summarized as under.

4. The suit property bearing S. No. 402, Bungalow No. 15A, situated

at Staveley Road, Pune Cantonment, Pune–1 was leased by the

respondent in favour of the appellants on 09.03.1951.

5. As the appellants committed breach of the terms of the lease deed,

the respondent herein instituted civil suit bearing No. 2599 of 1981

before the Court of the 4th Additional Small Causes Judge, Pune

for the recovery of the possession of the suit property & arrears

towards the rent.

6. On 02.05.1987, the suit came to be allowed and the final decree

came to be passed in the following terms:

“ORDER

1) The plaintiffs are entitled to possession of the suit

premises.

2) The defendant shall deliver vacant and peaceful

possession of the suit premises to the plaintiffs or

before 30.6.1987.

[2024] 4 S.C.R. 79

Union of India & Anr. v.

Jahangir Byramji Jeejeebhoy (D) Through His LR

3) The defendants do pay by way of damages and

mesne profits and notice charges Rs. 17,383/- to

the plaintiffs.

4) The defendant shall also pay future mesne profits

at the rate of Rs. 316/- per month from the date of

filing of the suit till recovery of possession of the suit

premises under order 20 rule 12(1) of CPC.

5) The defendant shall pay costs of this suit to the

plaintiffs and shall bear their own.”

7. The appellants herein challenged the judgment and decree referred

to above by preferring Civil Appeal bearing No. 850 of 1987 in the

Court of the District Judge, Pune. The appeal filed by the appellants

herein came to be dismissed vide the judgment and order dated

29.08.1992 passed by the 8th Additional District Judge, Pune.

8. The judgment and order passed by the first appellate court dismissing

the appeal referred to above came to be challenged by the appellants

herein by filing the Petition No. 2307 of 1993 before the High Court

of Bombay invoking its supervisory jurisdiction under Article 227 of

the Constitution of India.

9. On 10.10.2006, the Petition No. 2307 of 1993 referred to above

came to be dismissed for non-prosecution. The order reads thus:

“Coram : D.G. Deshpande – J.) on 10.10.06

AND UPON hearing Shri. D.S. Mhaispurkar for Respondent

Nos. 1A to 1C and 2 this Court has passed the following

order:-

“None for the Petitioners. Mr. D.S. Mhaispurkar for the

Respondents 1A to C and 2.

Petition is dismissed. Rule discharged. Interim order is

vacated.

IT IS ACCORDINGLY ordered that this writ petition is

disposed of as per the accompanying court’s order. The

directions given in the court’s order hereinabove shall be

carried out and complied with scrupulously.

It is accordingly ordered that this order be punctually

observed and carried into execution by concerned.”

80 [2024] 4 S.C.R.

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10. On 26.11.2013 the respondent herein filed Execution Petition bearing

No. 16 of 2014. The appellants herein were served with the notice

in the execution proceedings on 18.03.2016 by the Executing Court.

11. On 20.08.2018, the appellants herein filed an application seeking to

set aside the order passed by the Executing Court. On 30.10.2018

the Executing Court set aside the said order referred to above.

12. On 12.04.2019, the appellants herein filed Civil Application No. 1294

of 2019 seeking restoration of the Petition No. 2307 of 1993 referred

to above and for condonation of delay of 12 years and 158 days in

preferring such restoration application.

13. On 09.07.2019, a learned single Judge of the High Court vide the

impugned order declined to condone the delay of 12 years and 158

days in filing the restoration application.

14. In view of the aforesaid, the appellants are here before this Court

with the present appeal.

Submissions on behalf of the appellants

15. Mr. R. Venkataramani, the learned Attorney General for India

appearing for the appellants vehemently submitted that he has a

very good case on merits and considering the merits alone, the

delay of 12 years and 158 days deserves to be condoned. The

learned Attorney General laid much emphasis on the fact that the

suit property is situated within the Pune cantonment which is under

the ownership of the Union of India and the same was held by the

respondent herein on old grant lease and in such circumstances,

according to the learned Attorney General, the respondent in his

capacity as a private party should not be permitted to deprive

the Government of its land after having admitted that the super

structure alone belongs to him and that the land belongs to the

Government.

16. On the aspect of delay of 12 years and 158 days in filing the restoration

application before the High Court, the learned Attorney General has

no explanation worth to offer.

Submissions on behalf of the respondent

17. Mr. Sudhanshu Chaudhari, the learned senior counsel appearing for

the respondent, on the other hand, vehemently opposed the present

appeal and submitted that no error not to speak of any error of law 

[2024] 4 S.C.R. 81

Union of India & Anr. v.

Jahangir Byramji Jeejeebhoy (D) Through His LR

could be said to have been committed by the High Court in passing

the impugned order.

18. He submitted that no sufficient case worth the name has been

assigned by the appellants for the purpose of getting such a long

and inordinate delay of more than 12 years condoned for filing the

restoration application.

19. In such circumstances referred to above, the learned counsel prayed

that there being no merit worth the name in the present appeal, the

same may be dismissed.

Analysis

20. Having heard the learned counsel appearing for the parties and

having gone through the materials on record, the only question that

falls for our consideration is whether the High Court committed any

error in passing the impugned order?

21. When this matter was heard for the first time by this Bench, we

brought to the notice of the learned Attorney General something very

relevant as observed by the High Court in para 18 of its impugned

order. Para 18 of the impugned order reads thus:

“18. During the course of hearing, I suggested Mr. Singh that

in case the defendants are ready and willing to handover

possession of the suit property to the respondents, the

Court will consider restoring the Petition to its original

position. The respondents in turn will give undertaking to the

effect that in case the defendants succeed in the Petition,

before approaching the Apex Court, they will handover

possession of the suit property to the defendants. Upon

taking instructions, Mr. Singh submitted that defendants

are not ready and willing to handover possession of the

suit property. In view of the aforesaid discussion, no case

is made out for condoning the delay.”

22. Thus, it appears that the High Court made a reasonable suggestion

to the appellants that if the possession of the suit property is handed

over to the respondent, then probably the Court may consider

restoring the Petition No. 2307 of 1993 which came to be dismissed

for default on 10.10.2006. The High Court noted as above that the

learned counsel appearing for the appellants declined to hand over

the possession of the suit property to the respondent herein. We 

82 [2024] 4 S.C.R.

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reiterated the very same suggestion before the learned Attorney

General that if the appellants are ready and willing to hand over the

suit property to the respondent, then, despite there being a long and

inordinate delay, we may consider condoning the same and remanding

the matter back to the High Court so that the High Court may be in

a position to hear the matter on its own merits. However, the learned

Attorney General, after taking instructions from his clients, regretted

his inability to persuade the appellants to hand over the possession

of the suit property to the respondent.

23. In such circumstances referred to above, we were left with no

other option but to call upon the learned Attorney General to make

submissions as to why we should look into only the merits of the

matter and condone the delay of 12 years and 158 days.

24. In the aforesaid circumstances, we made it very clear that we are

not going to look into the merits of the matter as long as we are not

convinced that sufficient cause has been made out for condonation

of such a long and inordinate delay.

25. It hardly matters whether a litigant is a private party or a State or

Union of India when it comes to condoning the gross delay of more

than 12 years. If the litigant chooses to approach the court long after

the lapse of the time prescribed under the relevant provisions of the

law, then he cannot turn around and say that no prejudice would be

caused to either side by the delay being condoned. This litigation

between the parties started sometime in 1981. We are in 2024.

Almost 43 years have elapsed. However, till date the respondent

has not been able to reap the fruits of his decree. It would be a

mockery of justice if we condone the delay of 12 years and 158

days and once again ask the respondent to undergo the rigmarole

of the legal proceedings.

26. The length of the delay is a relevant matter which the court must

take into consideration while considering whether the delay should be

condoned or not. From the tenor of the approach of the appellants,

it appears that they want to fix their own period of limitation for

instituting the proceedings for which law has prescribed a period

of limitation. Once it is held that a party has lost his right to have

the matter considered on merits because of his own inaction for a

long, it cannot be presumed to be non-deliberate delay and in such

circumstances of the case, he cannot be heard to plead that the 

[2024] 4 S.C.R. 83

Union of India & Anr. v.

Jahangir Byramji Jeejeebhoy (D) Through His LR

substantial justice deserves to be preferred as against the technical

considerations. While considering the plea for condonation of delay,

the court must not start with the merits of the main matter. The

court owes a duty to first ascertain the bona fides of the explanation

offered by the party seeking condonation. It is only if the sufficient

cause assigned by the litigant and the opposition of the other side

is equally balanced that the court may bring into aid the merits of

the matter for the purpose of condoning the delay.

27. We are of the view that the question of limitation is not merely a

technical consideration. The rules of limitation are based on the

principles of sound public policy and principles of equity. We should

not keep the ‘Sword of Damocles’ hanging over the head of the

respondent for indefinite period of time to be determined at the

whims and fancies of the appellants.

28. At this stage, we would like to quote few observations made by the

High Court in its impugned order pointing towards lack of bona fides

on the part of the appellants. The observations are as under:-

“9. A perusal of paragraph 4 extracted hereinabove shows

that on oath, solemn statement is made that notice of

Darkhast No.16 of 2014 for execution of the decree issued

by the executing Court was received by the Department

on 25.02.2019. As against this, in paragraph 3 of the

additional affidavit dated 04.07.2019 made by Rajendra

Rajaram Pawar, it is stated that the averments made in

paragraph 4 as regards service of Darkhast on 25.02.2019

is factually incorrect. Notice of Darkhast No. 16 of 2014

was received by the defendants on 18.03.2016. The error

in the application is out of inadvertence for which he

tendered unconditional apology. It is further stated that

inadvertent mistake on facts as to knowledge of execution

proceedings was purely because of oversight in the light

of possibilities of issuance of possession warrant by the

executing court and requirement of expeditious urgency

of moving before this Court to save the proceeding in

litigation since 1981 which otherwise would have got

frustrated. He stated that the same is nothing beyond

human error.

 x x x x

84 [2024] 4 S.C.R.

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12. The assertions made in paragraph 4 are bereft of

any particulars and are totally vague. In fact the solemn

statement made in paragraph 4 that notice of Darkhast

for execution of the decree issued by the executing Court

was received by the Department on 25.02.2019, to put it

mildly, is incorrect statement. In view of paragraph 3 of the

additional affidavit dated 04.07.2019 made by Rajendra

Rajaram Pawar, it is evident that notice of Darkhast

was received by the defendants on 18.03.2016. It is

material to note that no particulars are given as to when

the Department sought legal opinion. There is also no

explanation as to why Department did not instruct lawyer

in the High Court to apply for restoration of the Petition

and why the Department defended execution proceedings.

It is worthwhile to note that execution proceedings were

filed by the respondents only because Writ Petition was

dismissed. If the Writ Petition was restored, automatically

the execution proceedings would have been stayed by

the executing Court. Instead of adopting appropriate

proceedings, the defendants unnecessarily went on

defending the execution proceedings. In paragraph 4(b)

though it is stated that Department was regularly following

up with its panel lawyer till 2003, this statement is also

not substantiated by producing any document. Even if I

accept that the Department was regularly following up

with its panel lawyer till 2003, there is no explanation

worth the name as to why the Department did not follow

up the matter between 2003 and 2006 when the Petition

was dismissed in default. That apart, equally, there is no

explanation as to why no follow up action was taken by

the officers between 2006 and 2016 when Department

acquired knowledge about dismissal of Writ Petition on

18.03.2016.

13. It is no doubt true that while considering the application

for condonation of delay, the expression ‘sufficient cause’

has to be liberally construed. It, however, does not mean

that without making any sufficient cause, the Court will

condone the delay regardless of the length of the delay. In

the present case, the delay is of 12 years and 158 days. 

[2024] 4 S.C.R. 85

Union of India & Anr. v.

Jahangir Byramji Jeejeebhoy (D) Through His LR

A perusal of the application as also the additional affidavit

hardly indicates any sufficient cause for condoning the

unpardonable delay of 12 years and 158 days.”

29. In Oriental Aroma Chemical Industries Limited v. Gujarat

Industrial Development Corporation, (2010) 5 SCC 459, this

Court rejected the application for condonation of delay of 4 years in

filing an application to set aside an exparte decree on the ground

that the explanation offered for condonation of delay is found to be

not satisfied.

30. In Postmaster General and others v. Living Media India

Limited, (2012) 3 SCC 563, this Court, while dismissing the

application for condonation of delay of 427 days in filing the

Special Leave Petition, held that condonation of delay is not an

exception and it should not be used as an anticipated benefit for

the government departments. In that case, this Court held that

unless the Department has reasonable and acceptable reason

for the delay and there was bona fide effort, there is no need to

accept the usual explanation that the file was kept pending for

several months/years due to considerable degree of procedural

red tape in the process cannot be accepted. In Para Nos. 25,

26, 27, 28, and 29 respectively, this Court dealt with the scope

of ‘sufficient cause’ and held as follows:

“25. We have already extracted the reasons as mentioned

in the “better affidavit” sworn by Mr. Aparajeet Pattanayak,

SSRM, Air Mail Sorting Division, New Delhi. It is relevant

to note that in the said affidavit, the Department has itself

mentioned and is aware of the date of the judgment of

the Division Bench of the High Court in Office of the Chief

Postmaster v. Living Media India Ltd. [(2009) 8 AD 201

(Del)] as 11-9-2009. Even according to the deponent,

their counsel had applied for the certified copy of the said

judgment only on 8-1-2010 and the same was received

by the Department on the very same day. There is no

explanation for not applying for the certified copy of the

impugned judgment on 11-9-2009 or at least within a

reasonable time. The fact remains that the certified copy

was applied for only on 8-1-2010 i.e. after a period of

nearly four months. 

86 [2024] 4 S.C.R.

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26. In spite of affording another opportunity to file

better affidavit by placing adequate material, neither

the Department nor the person-in-charge has filed any

explanation for not applying the certified copy within

the prescribed period. The other dates mentioned in the

affidavit which we have already extracted, clearly show that

there was delay at every stage and except mentioning the

dates of receipt of the file and the decision taken, there

is no explanation as to why such delay had occasioned.

Though it was stated by the Department that the delay was

due to unavoidable circumstances and genuine difficulties,

the fact remains that from day one the Department or the

person/persons concerned have not evinced diligence in

prosecuting the matter to this Court by taking appropriate

steps.

27. It is not in dispute that the person(s) concerned

were well aware or conversant with the issues involved

including the prescribed period of limitation for taking

up the matter by way of filing a special leave petition

in this Court. They cannot claim that they have a

separate period of limitation when the Department was

possessed with competent persons familiar with court

proceedings. In the absence of plausible and acceptable

explanation, we are posing a question why the delay

is to be condoned mechanically merely because the

Government or a wing of the Government is a party

before us.

28. Though we are conscious of the fact that in a

matter of condonation of delay when there was no

gross negligence or deliberate inaction or lack of

bona fides, a liberal concession has to be adopted to

advance substantial justice, we are of the view that in

the facts and circumstances, the Department cannot

take advantage of various earlier decisions. The claim

on account of impersonal machinery and inherited

bureaucratic methodology of making several notes cannot

be accepted in view of the modern technologies being

used and available. The law of limitation undoubtedly

binds everybody, including the Government. 

[2024] 4 S.C.R. 87

Union of India & Anr. v.

Jahangir Byramji Jeejeebhoy (D) Through His LR

29. In our view, it is the right time to inform all the government

bodies, their agencies and instrumentalities that unless

they have reasonable and acceptable explanation for the

delay and there was bona fide effort, there is no need to

accept the usual explanation that the file was kept pending

for several months/years due to considerable degree

of procedural red tape in the process. The government

departments are under a special obligation to ensure that

they perform their duties with diligence and commitment.

Condonation of delay is an exception and should not

be used as an anticipated benefit for the government

departments. The law shelters everyone under the same

light and should not be swirled for the benefit of a few.”

31. In the case of Lanka Venkateswarlu (D) by LRs v. State of Andhra

Pradesh & others, (2011) 4 SCC 363, this Court made the following

observations:

“20. In N. Balakrishnan, [(1998) 7 SCC 123] this Court

again reiterated the principle that: (SCC p. 127, para 11)

“11. Rules of limitation are not meant to destroy

the rights of parties. They are meant to see that

[the] parties do not resort to dilatory tactics, but

seek their remedy promptly.”

21 to 27.........

28. We are at a loss to fathom any logic or rationale, which

could have impelled the High Court to condone the delay

after holding the same to be unjustifiable. The concepts

such as “liberal approach”, “justice oriented approach”,

“substantial justice” cannot be employed to jettison the

substantial law of limitation. Especially, in cases where

the court concludes that there is no justification for the

delay. In our opinion, the approach adopted by the High

Court tends to show the absence of judicial balance and

restraint, which a Judge is required to maintain whilst

adjudicating any lis between the parties. We are rather

pained to notice that in this case, not being satisfied with

the use of mere intemperate language, the High Court

resorted to blatant sarcasms. 

88 [2024] 4 S.C.R.

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29. The use of unduly strong intemperate or extravagant

language in a judgment has been repeatedly disapproved

by this Court in a number of cases. Whilst considering

applications for condonation of delay under Section 5 of

the Limitation Act, the courts do not enjoy unlimited and

unbridled discretionary powers. All discretionary powers,

especially judicial powers, have to be exercised within

reasonable bounds, known to the law. The discretion has to

be exercised in a systematic manner informed by reason.

Whims or fancies; prejudices or predilections cannot and

should not form the basis of exercising discretionary

powers.”

32. In the case of Pundlik Jalam Patil (D) by LRs. v. Executive

Engineer, Jalgaon Medium Project & others, (2008) 17 SCC 448,

this Court held as follows:

“19. In Ajit Singh Thakur Singh v. State of Gujarat [(1981)

1 SCC 495 : 1981 SCC (Cri) 184] this Court observed:

(SCC p. 497, para 6)

“6. … it is true that a party is entitled to wait until

the last day of limitation for filing an appeal. But

when it allows limitation to expire and pleads

sufficient cause for not filing the appeal earlier,

the sufficient cause must establish that because

of some event or circumstance arising before

limitation expired it was not possible to file the

appeal within time. No event or circumstance

arising after the expiry of limitation can constitute

sufficient cause.”

(emphasis supplied)

This judgment squarely applies to the facts in hand.

 x x x x

21. Shri Mohta, learned Senior Counsel relying on

the decision of this Court in N. Balakrishnan v. M.

Krishnamurthy [(1998) 7 SCC 123] submitted that length

of delay is no matter and acceptability of explanation is

the only criterion. It was submitted that if the explanation

offered does not smack of mala fides or it is not put 

[2024] 4 S.C.R. 89

Union of India & Anr. v.

Jahangir Byramji Jeejeebhoy (D) Through His LR

forth as a part of dilatory tactics, the court must show

utmost consideration to the suitor. The very said

decision upon which reliance has been placed holds

that the law of limitation fixes a lifespan for every legal

remedy for the redress of the legal injury suffered.

Unending period for launching the remedy may lead to

unending uncertainty and consequential anarchy. The

law of limitation is thus founded on public policy. The

decision does not lay down that a lethargic litigant can

leisurely choose his own time in preferring appeal or

application as the case may be. On the other hand,

in the said judgment it is said that court should not

forget the opposite party altogether. It was observed:

(SCC p. 128, para 11)

“11. … It is enshrined in the maxim interest

reipublicae ut sit finis litium (it is for the general

welfare that a period be put to litigation). Rules

of limitation are not meant to destroy the rights

of the parties. They are meant to see that parties

do not resort to dilatory tactics but seek their

remedy promptly. The idea is that every legal

remedy must be kept alive for a legislatively

fixed period of time.”

22. In Ramlal v. Rewa Coalfields Ltd. [AIR 1962 SC 361]

this Court held that: (AIR pp. 363-65)

“In construing Section 5 of the Limitation Act,

it is relevant to bear in mind two important

considerations. The first consideration is that

the expiration of period of limitation prescribed

for making an appeal gives rise to right in

favour of the decree-holder to treat the decree

as binding between the parties and this legal

right which has accrued to the decree-holder

by lapse of time should not be light-heartedly

disturbed. The other consideration which

cannot be ignored is that if sufficient cause

of excusing delay is shown discretion is

given to the court to condone the delay and

admit the appeal. It is further necessary to 

90 [2024] 4 S.C.R.

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emphasise that even if the sufficient cause

has been shown a party is not entitled to the

condonation of delay in question as a matter

of right. The proof of a sufficient cause is a

condition precedent for the exercise of the

discretionary jurisdiction vested in the court by

Section 5. This aspect of the matter naturally

introduces the consideration of all relevant

facts and it is at this stage the diligence

of the party or its bona fides may fall for

consideration.”

(emphasis supplied)

23. On the facts and in the circumstances, we are of

the opinion that the respondent beneficiary was not

diligent in availing the remedy of appeal. The averments

made in the application seeking condonation of delay in

filing appeals do not show any acceptable cause much

less sufficient cause to exercise courts’ discretion in its

favour.”

33. In the case of Esha Bhattacharjee v. Managing Committee of

Raghunathpur Nafar Academy & Others, (2013) 12 SCC 649,

this Court made the following observations:

“21. From the aforesaid authorities the principles that can

broadly be culled out are:

21.1. (i) There should be a liberal, pragmatic, justiceoriented, non-pedantic approach while dealing with an

application for condonation of delay, for the courts are not

supposed to legalise injustice but are obliged to remove

injustice.

21.2. (ii) The terms “sufficient cause” should be understood

in their proper spirit, philosophy and purpose regard being

had to the fact that these terms are basically elastic and

are to be applied in proper perspective to the obtaining

fact-situation.

21.3. (iii) Substantial justice being paramount and pivotal

the technical considerations should not be given undue

and uncalled for emphasis.

[2024] 4 S.C.R. 91

Union of India & Anr. v.

Jahangir Byramji Jeejeebhoy (D) Through His LR

21.4. (iv) No presumption can be attached to deliberate

causation of delay but, gross negligence on the part of

the counsel or litigant is to be taken note of.

21.5. (v) Lack of bona fides imputable to a party seeking

condonation of delay is a significant and relevant fact.

21.6. (vi) It is to be kept in mind that adherence to strict

proof should not affect public justice and cause public

mischief because the courts are required to be vigilant

so that in the ultimate eventuate there is no real failure

of justice.

21.7. (vii) The concept of liberal approach has to

encapsulate the conception of reasonableness and it

cannot be allowed a totally unfettered free play.

21.8. (viii) There is a distinction between inordinate delay

and a delay of short duration or few days, for to the former

doctrine of prejudice is attracted whereas to the latter it

may not be attracted. That apart, the first one warrants

strict approach whereas the second calls for a liberal

delineation.

21.9. (ix) The conduct, behaviour and attitude of a party

relating to its inaction or negligence are relevant factors

to be taken into consideration. It is so as the fundamental

principle is that the courts are required to weigh the scale

of balance of justice in respect of both parties and the

said principle cannot be given a total go by in the name

of liberal approach.

21.10. (x) If the explanation offered is concocted or

the grounds urged in the application are fanciful, the

courts should be vigilant not to expose the other side

unnecessarily to face such a litigation.

21.11. (xi) It is to be borne in mind that no one gets away

with fraud, misrepresentation or interpolation by taking

recourse to the technicalities of law of limitation.

21.12. (xii) The entire gamut of facts are to be carefully

scrutinised and the approach should be based on the

paradigm of judicial discretion which is founded on objective 

92 [2024] 4 S.C.R.

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reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity

representing a collective cause should be given some

acceptable latitude.

22. To the aforesaid principles we may add some more

guidelines taking note of the present day scenario. They

are:

22.1. (a) An application for condonation of delay should

be drafted with careful concern and not in a haphazard

manner harbouring the notion that the courts are required

to condone delay on the bedrock of the principle that

adjudication of a lis on merits is seminal to justice

dispensation system.

22.2. (b) An application for condonation of delay should not

be dealt with in a routine manner on the base of individual

philosophy which is basically subjective.

22.3. (c) Though no precise formula can be laid down

regard being had to the concept of judicial discretion, yet

a conscious effort for achieving consistency and collegiality

of the adjudicatory system should be made as that is the

ultimate institutional motto.

22.4. (d) The increasing tendency to perceive delay as a

non-serious matter and, hence, lackadaisical propensity

can be exhibited in a nonchalant manner requires to be

curbed, of course, within legal parameters.”

34. In view of the aforesaid, we have reached to the conclusion that

the High Court committed no error much less any error of law

in passing the impugned order. Even otherwise, the High Court

was exercising its supervisory jurisdiction under Article 227 of the

Constitution of India.

35. In a plethora of decisions of this Court, it has been said that delay

should not be excused as a matter of generosity. Rendering substantial

justice is not to cause prejudice to the opposite party. The appellants

have failed to prove that they were reasonably diligent in prosecuting

the matter and this vital test for condoning the delay is not satisfied

in this case.

[2024] 4 S.C.R. 93

Union of India & Anr. v.

Jahangir Byramji Jeejeebhoy (D) Through His LR

36. For all the foregoing reasons, this appeal fails and is hereby dismissed.

There shall be no order as to costs.

37. Pending application, if any, shall also stand disposed of accordingly.

Headnotes prepared by: Divya Pandey Result of the case:

Appeal dismissed.

Matrimonial laws – Matrimonial disputes – Medical tests – Potentiality test for husband – Divorce petition by the wife on the ground that the marriage between the parties was not consummated because of the husband’s impotency – Application by husband for subjecting the husband to undergo potentiality test and referring the wife for fertility test and psychological/mental health test for both the parties – Allowed by the trial court, however set aside by the High Court – Correctness:

* Author

[2024] 4 S.C.R. 72 : 2024 INSC 274

Deep Mukerjee

v.

Sreyashi Banerjee

(Civil Appeal No(s). 4722-4723 of 2024)

05 April 2024

[Vikram Nath and Prashant Kumar Mishra,* JJ.]

Issue for Consideration

Matter pertains to subjecting the husband to undergo potentiality test.

Headnotes

Matrimonial laws – Matrimonial disputes – Medical tests –

Potentiality test for husband – Divorce petition by the wife

on the ground that the marriage between the parties was

not consummated because of the husband’s impotency

– Application by husband for subjecting the husband to

undergo potentiality test and referring the wife for fertility

test and psychological/mental health test for both the parties

– Allowed by the trial court, however set aside by the High

Court – Correctness:

Held: When the husband is willing to undergo potentiality test, the

High Court should have upheld the order of the trial court to that

extent – Order passed by the trial court directing the husband to

take the medical test to determine his potentiality upheld – Impugned

order passed by the High Court modified to that extent – Hindu

Marriage Act, 1955 – Evidence Act, 1872. [Para 9]

Case Law Cited

Sharda v. Dharmpal [2003] 3 SCR 106 : (2003) 4 SCC

493 – referred to.

List of Acts

Hindu Marriage Act, 1955; Evidence Act, 1872; Code of Civil

Procedure, 1908.

List of Keywords

Divorce petition; Non-consummation of marriage; Impotency;

Medical tests; Potential test; Fertility test; Psychological/mental

health test.

[2024] 4 S.C.R. 73

Deep Mukerjee v. Sreyashi Banerjee

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.4722-4723 of

2024

From the Judgment and Order dated 28.11.2023 of the High Court of

Judicature at Madras in CRPPD No. 2844 and 2848 of 2023

Appearances for Parties

B Ragunath, Mrs. N C Kavitha, Vijay Kumar, Advs. for the Appellant.

K. S. Mahadevan, Ms. Swati Bansal, Rangarajan .R, Aravind

Gopinathan, Rajesh Kumar, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Prashant Kumar Mishra, J.

Leave granted.

2. Challenge in these appeals is to the common order dated 28.11.2023

passed by the High Court in Civil Revision Petition Nos. 2844 and

2848 of 2023 allowing the revisions while setting aside the order

dated 27.06.2023 passed by the Trial Court in I.A. Nos. 8 & 9 of

2023 preferred by the appellant/husband in O.P. No. 2866 of 2021.

3. The parties were married on 23.07.2013 at Chennai and thereafter

they agreed to move to the United Kingdom where they stayed

together happily for a period of 7½ years. After they returned, they

stayed together in a residential property belonging to the respondent/

wife’s father. However, upon disputes being cropped, they have

separated in April, 2021 and since then, it is alleged by the appellant/

husband that the respondent/wife neither joined his company nor

responded to any communication and/or messages of the appellant/

husband.

4. The appellant/husband preferred application under Section 9 of the

Hindu Marriage Act, 19551

 before the Additional Principal Family

Court at Chennai, seeking restitution of conjugal rights being OP No.

2441 of 2021 whereas the respondent/wife subsequently preferred

1 ‘Act,1955’ 

74 [2024] 4 S.C.R.

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OP No. 2866 of 2021 for grant of decree of divorce under Section

13(1) (ia) of the Act, 1955 on the ground that the marriage between

the parties has not consummated because of the appellant/husband’s

impotency.

5. In the above factual background, the appellant/husband moved I.A.

Nos. 8 & 9 of 2023 under Section 45 of the Indian Evidence Act

read with Section 151 of the Code of Civil Procedure, 19082

 for

subjecting the appellant/husband to undergo potentiality test and

at the same time referring the respondent/wife for fertility test and

psychological/mental health test for both the parties. Vide order dated

27.06.2023, the Trial Court allowed the above interim applications

on the condition that a competent medical board shall be constituted

by the Dean, Rajiv Gandhi Government General Hospital, Chennai

to conduct the subject tests for both the parties as prayed for in the

interim applications and the report of the medical board be sent to

the Court through the advocate Commissioner in a sealed cover.

Both the parties were directed not to reveal the result of the tests

to any third party and maintain complete secrecy.

6. The Trial Court’s order dated 27.06.2023 was challenged by the

respondent/wife before the High Court by way of two separate

revisions which have been allowed by the High Court under the

impugned order.

7. In the course of arguments in this Court, learned counsel for the

appellant/husband submitted that when the appellant/husband is

willing to undergo potentiality test, there is no reason why the High

Court should set aside the entire order. The learned counsel for

the appellant would refer to the decision of this Court in the case

of “Sharda vs. Dharmpal” (2003) 4 SCC 493. Per contra, the

learned counsel for the respondent/wife would submit that when the

respondent/wife is not willing to undergo any test be it fertility test

or mental health check-up, she cannot be compelled to undergo

such tests.

8. While allowing the revision petitions preferred by the respondent/

wife the High Court has not assigned any cogent reason as to why

the appellant/husband cannot be sent for potentiality test. Instead of

2 ‘CPC’

[2024] 4 S.C.R. 75

Deep Mukerjee v. Sreyashi Banerjee

dwelling on the contentions of the parties qua the merits of the interim

applications decided by the Trial Court, the High Court focused on

the conduct of the parties which was not at all germane for deciding

the issue as to the validity of the order passed by the Trial court.

9. Considering the fact situation of the present case, we are satisfied

that when the appellant/husband is willing to undergo potentiality test,

the High Court should have upheld the order of the Trial Court to that

extent. Accordingly, we allow the present appeals in part maintaining

the order passed by the Trial Court dated 27.06.2023 insofar as it

directs the appellant/husband to take the medical test to determine

his potentiality. Let the test be conducted in the manner indicated

by the Trial Court within a period of four weeks from today and the

report be submitted within two weeks thereafter. Impugned order

passed by the High Court stands modified to the above extent only.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeals partly allowed.

Service Law – Superannuation – Discrepancy in date of birth – The CGIT passed its Award and held that the appellant’s determination of the respondent no.3’s date of birth based on the initial Descriptive Roll (27.12.1948) was unjustified and thus, awarded him 50% back wages from his retirement in 2008 until his supposed date of superannuation in 2015, based on the date of birth disclosed in the STC i.e., 12.03.1955 – Propriety:

* Author

[2024] 4 S.C.R. 63 : 2024 INSC 264

The General Manager, M/S Barsua Iron Ore Mines

v.

The Vice President United Mines Mazdoor Union and Ors.

(Civil Appeal No. 4686 of 2024)

02 April 2024

[Hima Kohli and Ahsanuddin Amanullah,* JJ.]

Issue for Consideration

Respondent initially declared his date of birth as 27.12.1948.

Later, in descriptive roll, he changed his initially recorded date

of birth i.e. 27.12.1948 to 12.03.1955. Based on his declaration

at the time of initial employment the Competent Authority of the

appellant determined the date of birth of the respondent no.3 as

27.12.1948. The respondent no.3 superannuated from service

based on his initially recorded date of birth [27.12.1948]. Whether

the respondent no.3 is held to have been rightly retired in terms

of his date of birth as 27.12.1948.

Headnotes

Service Law – Superannuation – Discrepancy in date of birth

– The CGIT passed its Award and held that the appellant’s

determination of the respondent no.3’s date of birth based

on the initial Descriptive Roll (27.12.1948) was unjustified

and thus, awarded him 50% back wages from his retirement

in 2008 until his supposed date of superannuation in 2015,

based on the date of birth disclosed in the STC i.e., 12.03.1955

– Propriety:

Held: The disclosure of the originally-given date of birth

(27.12.1948) by the respondent no.3 was a well-thought out plan

hatched by him, at the relevant time – His conduct cannot be

simply brushed aside on a plea that there was an error on the

part of the appellant in recording his date of birth – Examined

thus, the following is evincible: (a) the Competent Authority noticed

discrepancy in the date of birth in the records of the appellant and,

upon due scrutiny, opined that the declaration of date of birth made

by the respondent no.3 at the first point of time, i.e., 27.12.1948,

should be taken as his date of birth, as till 1998 no documentary

proof was given, and; (b) the respondent no.3 would not have 

64 [2024] 4 S.C.R.

Digital Supreme Court Reports

been able to legally come into employment on 27.12.1972, had

he disclosed his date of birth as 12.03.1955 – No fault can be

found with the appellant on this score – It is a just and reasonable

conclusion by the appellant’s Competent Authority – The principles

of estoppel would come into play in the present case – The

respondent no.3, having stated on 27.12.1972, that his date of

birth was 27.12.1948, cannot be permitted to raise the claim of

his date of birth being 12.03.1955, that too on 14.08.1982, i.e.,

almost after a decade (counting from 27.12.1972 to 14.08.1982)

– Even the STC was submitted after the appellant requested

the respondent no.3 for documentary proof on 24.11.1998 – The

respondent no.3 is held to have been rightly retired in terms of

his date of birth reckoned as 27.12.1948 – The further direction

to award 50% back wages to the respondent no.3 from the date

he was retired till the (notional) superannuation on 31.03.2015,

also stands set aside. [Paras 17 and 19]

Case Law Cited

Bharat Coking Coal Ltd. v. Shib Kumar Dushad [2000]

Suppl. 4 SCR 336 : (2000) 8 SCC 696; Union of India

v C Rama Swamy [1997] 3 SCR 760 : (1997) 4 SCC

647 – relied on.

Karnataka Rural Infrastructure Development Limited v.

T P Nataraja [2021] 7 SCR 634 : (2021) 12 SCC 27;

Home Department v. R Kirubakaran [1993] Suppl. 2

SCR 376 : (1994) Supp (1) SCC 155; State of Madhya

Pradesh v. Premlal Shrivas [2011] 11 SCR 444 : (2011)

9 SCC 664; Life Insurance Corporation of India v. R

Basavaraju (2016) 15 SCC 781; Bharat Coking Coal

Limited v. Shyam Kishore Singh (2020) 3 SCC 411 –

referred to.

List of Keywords

Service Law; Superannuation; Date of birth; Discrepancy in the

date of birth; Principle of estoppel; Back wages.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4686 of 2024

From the Judgment and Order dated 04.02.2021 of the High Court

of Orissa at Cuttack in WP(C) No. 9424 of 2019

[2024] 4 S.C.R. 65

The General Manager, M/S Barsua Iron Ore Mines v.

The Vice President United Mines Mazdoor Union and Ors.

Appearances for Parties

Ranjit Kumar, Sr. Adv., Sunil Kumar Jain, Ms. Rashika Swarup, Advs.

for the Appellant.

Ms. Deepanwita Priyanka, Satyalipsu Ray, Ritesh Patil, Advs. for

the Respondents.

Judgment / Order of the Supreme Court

Judgment

Ahsanuddin Amanullah, J.

1. Heard Mr. Ranjit Kumar, learned senior counsel for the appellant and

Ms. Deepanwita Priyanka, learned counsel for the respondent no.3.

2. Leave granted.

3. The present appeal arises out of the final judgment dated 04.02.2021

(hereinafter referred to as the “impugned judgment”), passed by a

Division Bench of the High Court of Orissa at Cuttack (hereinafter

referred to as the “High Court”) in Writ Petition (Civil) No.9424 of

2019, whereby the petition filed by the appellant was dismissed and

the Award dated 24.01.2018 passed by the Central Government

Industrial Tribunal-cum-Labour Court, Bhubaneswar (hereinafter

referred to as the “CGIT”) in ID Case No.33 of 2003, was upheld.

BRIEF FACTS:

4. The respondent no.3 was employed as a Piece Rated Mazdoor at

Barsua Iron Ore Mines under Rourkela Steel Plant, a unit of Hindustan

Steel Limited (hereinafter referred to as “HSL”), which later merged

into Steel Authority of India Limited (hereinafter referred to as “SAIL”).

The respondent no.3 was offered employment on a casual basis vide

letter dated 14.04.1972 as a Piece Rated Mazdoor. On 27.12.1972,

he submitted the prescribed form of descriptive roll declaring his age

as 24 years but did not provide a specific date or any documentary

proof of date of birth. Based on his oral declaration, his date of

birth was recorded as 27.12.1948 and this date was accepted and

signed on by the respondent no.3 leading to his employment. Vide

Offer of Appointment dated 22.06.1981, the respondent no.3, initially

employed as a casual labourer, was regularized under the appellant

and worked as a Piece Rated Mazdoor in mining operations for SAIL

following the merger of HSL into SAIL.

66 [2024] 4 S.C.R.

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5. It appears that on 14.08.1982, the respondent no.3 submitted the

prescribed form of Descriptive Roll, wherein he changed his initially

recorded date of birth i.e. 27.12.1948 to 12.03.1955, again without

providing any documentary proof. Vide Office Order dated 20.12.1982,

such date of birth, as disclosed by the respondent no.3, was entered

in the records of the appellant who effected the change without any

scrutiny.

6. On 24.11.1998, the respondent no.3 was requested to submit

documentary proof in support of his date of birth, in response to

which he submitted a School Transfer Certificate (hereinafter referred

to as the “STC”) dated 12.01.1972, which made him 17 years and 1

month old at the time when he was offered employment on casual

basis on 14.04.1972.

7. On 29.11.2001, based on his declaration at the time of initial

employment the Competent Authority of the appellant determined

the date of birth of the respondent no.3 as 27.12.1948, which made

him come within the statutory employment age limit and above the

minimum age i.e., 18 years, required for such employment.

8. On 09.10.2003, a dispute regarding the respondent no.3’s date of birth was

referred by the “appropriate Government” 1

 to the CGIT for adjudication.

1 Section 2(a) of the Industrial Disputes Act, 1947 reads as below:

'(a) “appropriate Government” means,—

(i) in relation to any Industrial Disputes concerning any industry carried on by or under the

authority of the Central Government or by a railway company or concerning any such controlled

industry as may be specified in this behalf by the Central Government or in relation to an Industrial

Dispute concerning a Dock Labour Board established under Section 5-A of the Dock Workers

(Regulation of Employment) Act, 1948 (9 of 1948), or the Industrial Finance Corporation of India

Limited formed and registered under the Companies Act, 1956, or the Employees’ State Insurance

Corporation established under Section 3 of the Employees’ State Insurance Act, 1948 (34 of 1948),

or the Board of Trustees constituted under Section 3-A of the Coal Mines Provident Fund and

Miscellaneous Provisions Act, 1948 (46 of 1948), or the Central Board of Trustees and the State

Boards of Trustees constituted under Section 5-A and Section 5-B, respectively, of the Employees’

Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952), or the Life Insurance

Corporation of India established under Section 3 of the Life Insurance Corporation Act, 1956 (31

of 1956), or the Oil and Natural Gas Corporation Limited registered under the Companies Act,

1956 (1 of 1956) or the Deposit Insurance and Credit Guarantee Corporation established under

Section 3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (47 of 1961), or the

Central Warehousing Corporation established under Section 3 of the Warehousing Corporations

Act, 1962 (58 of 1962), or the Unit Trust of India established under Section 3 of the Unit Trust of

India Act, 1963 (52 of 1963), or the Food Corporation of India established under Section 3, or a

Board of Management established for two or more contiguous States under Section 16 of the Food

Corporations Act, 1964 (37 of 1964), or the Airports Authority of India constituted under Section 3

of the Airports Authority of India Act, 1994 (55 of 1994), or a Regional Rural Bank established under

Section 3 of the Regional Rural Banks Act, 1976 (21 of 1976), or the Export Credit and Guarantee

Corporation Limited or the Industrial Reconstruction Corporation of India Limited, or the Banking 

[2024] 4 S.C.R. 67

The General Manager, M/S Barsua Iron Ore Mines v.

The Vice President United Mines Mazdoor Union and Ors.

9. In the meanwhile, on 31.12.2008, the respondent no.3 superannuated

from service, having attained the age of 60 years, based on his

initially recorded date of birth [27.12.1948].

10. On 24.01.2018, the CGIT passed its Award and held that the

appellant’s determination of the respondent no.3’s date of birth based

on the initial Descriptive Roll was unjustified and thus, awarded him

50% back wages from his retirement in 2008 until his supposed date

of superannuation in 2015, based on the date of birth disclosed in

the STC i.e., 12.03.1955. The appellant filed a Writ Petition before

the High Court of Orissa at Cuttack on 19.05.2019 challenging the

Award passed by the CGIT on 24.01.2018. The order of the High

Court dismissing the same on 04.02.2021, is impugned in the present

appeal.

SUBMISSIONS BY THE APPELLANT:

11. Learned Senior counsel for the appellant submitted that the conduct

of the respondent no.3 clearly dis-entitled him to any relief as he

could not have been allowed to resile from his initially declared date

of birth, that too after 9 years of his initial declaration, on 27.12.1972.

It was submitted that the said declaration by the respondent no.3

himself on 27.12.1972, cannot be said to be an inadvertent error

or omission for the reason that had the so-called correct date of

birth, according to the respondent no.3, i.e., 12.03.1955 been

declared, then at the relevant point of time, he would have been

only 17 years and 1 month old and could not have been given the

employment he had sought, since the minimum age required was

18 years. Thus, it was submitted that it was clear that he had tried

to take employment relying on his date of birth as 27.12.1948,

Service Commission established, under Section 3 of the Banking Service Commission Act, 1975,

or an air transport service, or a banking or an insurance company, a mine, an oilfield, a Cantonment

Board, or a major port, any company in which not less than fifty-one per cent of the paid-up share

capital is held by the Central Government, or any corporation, not being a corporation referred to

in this clause, established by or under any law made by Parliament, or the Central public sector

undertaking, subsidiary companies set up by the principal undertaking and autonomous bodies

owned or controlled by the Central Government, the Central Government, and

(ii) in relation to any other industrial dispute, including the State public sector undertaking, subsidiary

companies set up by the principal undertaking and autonomous bodies owned or controlled by the

State Government, the State Government:

Provided that in case of a dispute between a contractor and the contract labour employed through

the contractor in any industrial establishment where such dispute first arose, the appropriate

Government shall be the Central Government or the State Government, as the case may be, which

has control over such industrial establishment.’

68 [2024] 4 S.C.R.

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from which he cannot be allowed to backtrack. It was canvassed

that the same would amount to taking double advantage; one at

the initial stage on the basis of the date of birth as 27.12.1948

and later in service on a different date of birth i.e., 12.03.1955.

It was contended that the CGIT reaching the conclusion, that

the management could not have determined the date of birth of

the respondent no.3 based on the initial Descriptive Roll being

unjustified, was totally without any basis and arbitrary and thus,

awarding him 50% back wages, is totally misplaced and needs

interference by this Court. It was urged that the High Court also

failed to take notice of basic factual aspects and more importantly,

the conduct of the respondent no.3 and the time-gap of 9 years

after which he suddenly woke up and made a representation for

change of his date of birth.

SUBMISSIONS OF RESPONDENT NO.3:

12. Per contra, learned counsel for the respondent no.3 submitted that

at the time of filling up the Descriptive Roll, the same was based on

an oral declaration and apparently the authority, which was noting

down the date of birth, had committed an error.

13. It was further submitted that the STC dated 12.01.1972 clearly

indicates that his date of birth was 12.03.1955, which required

corrections in the records of the appellant and thus the CGIT and

the High Court have not committed any error warranting interference

by this Court.

14. It was submitted that the respondent no.3 was unaware of the date

of birth being recorded as 27.12.1948 and only when he came to

know of the same, he had taken steps and the CGIT rightly granted

relief to him.

15. Learned counsel submitted that the respondent no.3 cannot be

made to suffer for the fault of the appellant itself and more so when

later, in its own records it had correctly recorded his date of birth as

12.03.1955, in the year 1982.

ANALYSIS, CONCLUSION AND REASONING:

16. Having considered the matter in its entirety and the submissions

made, this Court is of the opinion that the Award of the CGIT as well

as the impugned judgment rendered by the High Court cannot be 

[2024] 4 S.C.R. 69

The General Manager, M/S Barsua Iron Ore Mines v.

The Vice President United Mines Mazdoor Union and Ors.

sustained. It is not in dispute that while submitting the Descriptive

Roll, the respondent no.3 had himself declared his age as 24 years

without any documentary proof and since the date of submission

of such Descriptive Roll was 27.12.1972, his date of birth was

recorded by the appellant as 27.12.1948. This position continued for

almost a decade viz. till 1982, when the respondent no.3 submitted

a declaration, on the merger of HSL with SAIL, wherein his date of

birth was disclosed as 12.03.1955, though even at such time, again,

no documentary proof was furnished by him. The respondent no.3

submitted the so-called proof, which was the STC dated 12.01.1972,

only after the issuance of letter dated 24.11.1998, whereby he was

required to submit documentary proof of his date of birth. Pausing

here, the Court would note that by reckoning his date of birth as

12.03.1955, the respondent no.3 would be much below the age of

18 years at the time of initial employment, which was the minimum

requirement in law. Thus, it is clear that had the respondent no.3

declared his so-called correct date of birth, obviously he would not

have been given the employment.

17. From this point of view, it is clear that the disclosure of the originallygiven date of birth by the respondent no.3 was a well-thought out

plan hatched by him, at the relevant time. His conduct cannot be

simply brushed aside on a plea that there was an error on the part

of the appellant in recording his date of birth. Another doubt cast

on the conduct of the respondent no.3 is him not acting on time,

which raises a question about the bonafides of his claim of having

been born on 12.03.1955. In fact, even after giving a declaration

on 14.08.1982, on the merger of HSL with SAIL, the copy of the

STC was never provided to the appellant, which was done only in

response to the letter dated 24.11.1998, requiring him to submit

documentary proof of his date of birth. Examined thus, the following

is evincible: (a) the Competent Authority noticed discrepancy in the

date of birth in the records of the appellant and, upon due scrutiny,

opined that the declaration of date of birth made by the respondent

no.3 at the first point of time, i.e., 27.12.1948, should be taken as

his date of birth, as till 1998 no documentary proof was given, and;

(b) the respondent no.3 would not have been able to legally come

into employment on 27.12.1972, had he disclosed his date of birth as

12.03.1955. No fault can be found with the appellant on this score.

It is a just and reasonable conclusion by the appellant’s Competent 

70 [2024] 4 S.C.R.

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Authority. Moreover, reckoning his date of birth as 27.12.1948, the

respondent no.3 has been permitted to work for 36 years, which

by itself is a sufficient period of employment. Hence, on this count

too, we are unable to show any indulgence to the respondent no.3.

18. Undoubtedly, a decision on the issue of date of birth is as important

for the employer as it is for the employee. Reference in this regard

can be made to Bharat Coking Coal Ltd. v Shib Kumar Dushad,

(2000) 8 SCC 696. As expressed in Union of India v C Rama

Swamy, (1997) 4 SCC 647, “… the court also ought not to grant any

relief even if it is shown that the date of birth, as originally recorded,

was incorrect because the candidate concerned had represented a

different date of birth to be taken into consideration obviously with

a view that that would be to his advantage. …”.

19. Moreover, the principles of estoppel would come into play in the

present case. The respondent no.3, having stated on 27.12.1972,

that his date of birth was 27.12.1948, cannot be permitted to raise the

claim of his date of birth being 12.03.1955, that too on 14.08.1982,

i.e., almost after a decade (counting from 27.12.1972 to 14.08.1982).

Even the STC was submitted after the appellant requested the

respondent no.3 for documentary proof on 24.11.1998.

20. Although, we have examined the matter from the lens of fraud as

well, in view of our discussions hereinabove, the said aspect does

not merit deeper probe. We leave it at that. For the present, it would

suffice to refer to a pronouncement of recent vintage by this Court

in Karnataka Rural Infrastructure Development Limited v T P

Nataraja, (2021) 12 SCC 27, where earlier precedents in Home

Department v R Kirubakaran, 1994 Supp (1) SCC 155; State

of Madhya Pradesh v Premlal Shrivas, (2011) 9 SCC 664; Life

Insurance Corporation of India v R Basavaraju, (2016) 15 SCC

781 and Bharat Coking Coal Limited v Shyam Kishore Singh,

(2020) 3 SCC 411 were considered. Although this Court in T P

Nataraja (supra) was looking at the facts therein, in the context of

the Karnataka State Servants (Determination of Age) Act, 1974, the

principle of law laid down would equally apply insofar as change of

date of birth in service records is concerned, with which we concur:

“11. Considering the aforesaid decisions of this Court the

law on change of date of birth can be summarised as under:

[2024] 4 S.C.R. 71

The General Manager, M/S Barsua Iron Ore Mines v.

The Vice President United Mines Mazdoor Union and Ors.

(i) application for change of date of birth can only be

as per the relevant provisions/regulations applicable;

(ii) even if there is cogent evidence, the same cannot

be claimed as a matter of right;

(iii) application can be rejected on the ground of delay

and laches also more particularly when it is made at

the fag-end of service and/or when the employee is

about to retire on attaining the age of superannuation.”

21. In view of the aforesaid, this Court finds that the much-delayed

disclosure of the date of birth as 12.03.1955 by the respondent

no.3, coupled with his initial declaration and the admitted position

that based on such initial declaration, he had received employment,

as otherwise based on 12.03.1955, he could not have been legally

appointed due to being under-age, there is no manner of doubt that

the respondent no.3, irrespective of his real date of birth, for the

purpose of employment under the appellant, cannot be allowed the

purported rectification/correction of date of birth to 12.03.1955. He

would have to, necessarily, be content with his service and benefits

accounted taking his date of birth as 27.12.1948.

22. For reasons aforesaid, the appeal stands allowed. The Award of the

CGIT dated 24.01.2018 and the impugned judgment stand set aside.

The respondent no.3 is held to have been rightly retired in terms

of his date of birth reckoned as 27.12.1948. Needless to state that

the further direction to award 50% back wages to the respondent

no.3 from the date he was retired till the (notional) superannuation

on 31.03.2015, also stands set aside.

23. There shall be no order as to costs. Pending applications [IA

Nos.51644/2021 and 54844/2021] are closed upon ceasing to subsist

for consideration. The amount deposited by the appellant with the

interest accrued thereon be released by the Registry in its favour.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeal allowed.

whether justified in reversing the acquittal of the appellant Nos.1 and 2 and convicting them u/ss.302 and 201/34 and ss.302/34 and 201, Penal Code, 1860 respectively and sentencing accordingly; whether the prosecution proved its case beyond reasonable doubt and whether the appellants were guilty of committing the crime.

* Author

[2024] 4 S.C.R. 48 : 2024 INSC 258

Ballu @ Balram @ Balmukund and Another

v.

The State of Madhya Pradesh

(Criminal Appeal No. 1167 of 2018)

02 April 2024

[B.R. Gavai* and Sandeep Mehta, JJ.]

Issue for Consideration

High Court whether justified in reversing the acquittal of the

appellant Nos.1 and 2 and convicting them u/ss.302 and 201/34

and ss.302/34 and 201, Penal Code, 1860 respectively and

sentencing accordingly; whether the prosecution proved its case

beyond reasonable doubt and whether the appellants were guilty

of committing the crime.

Headnotes

Appeal against acquittal – Interference – When not sustainable:

Held: Prosecution case rests on circumstantial evidence – Trial

Judge gave sound and cogent reasons for discarding the testimony

of the IO and the other witnesses and by elaborately discussing

the evidence found that the appellants were not guilty – Findings of

the trial Judge were based on correct appreciation of the material

placed on record – This elaborate exercise of the trial Judge was

washed away by the Division Bench of the High Court in a totally

cursory manner – Though the High Court referred to the law laid

down by this Court with regard to the scope of interference in

an appeal against acquittal, it totally misapplied the same and a

very well-reasoned judgment based upon the correct appreciation

of evidence by the trial Court was reversed only on the basis of

conjectures and surmises – High Court could have interfered

in the criminal appeal only if it came to the conclusion that the

findings of the trial Judge were either perverse or impossible – No

perversity or impossibility could be found in the approach adopted

by the trial Judge – Furthermore, in any case, even if two views

were possible and the trial Judge found the other view to be

more probable, an interference would not have been warranted

by the High Court, unless the view taken by the trial Judge was

a perverse or impossible view – Prosecution failed to prove any 

[2024] 4 S.C.R. 49

Ballu @ Balram @ Balmukund and Another v.

The State of Madhya Pradesh

of the incriminating circumstances beyond reasonable doubt and

in no case, the chain of circumstances, which was so interlinked

to each other that led to no other conclusion, than the guilt of the

accused persons – Judgment passed by the High Court being

unsustainable is quashed and set aside – Appellants acquitted.

[Paras 6, 12-14, 16, 19-23]

Evidence – Circumstantial evidence – Law as regards

conviction on the basis of circumstantial evidence – Discussed.

Case Law Cited

Sharad Birdhichand Sarda v. State of Maharashtra

[1985] 1 SCR 88 : (1984) 4 SCC 116 – relied on.

Sadhu Saran Singh v. State of U.P. [2016] 1 SCR

913 : (2016) 4 SCC 397; Harljan Bhala Teja v. State

of Gujarat [2016] 2 SCR 203 : (2016) 12 SCC 665 –

referred to.

List of Acts

Penal Code, 1860; Code of Criminal Procedure, 1973; Evidence

Act, 1872.

List of Keywords

Appeal against acquittal; Circumstantial evidence; Chain of

circumstances not interlinked; Case not proved beyond reasonable

doubt; Conjectures and surmises; Findings perverse or impossible;

Two possible views; Perverse or impossible view.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1167

of 2018

From the Judgment and Order dated 06.04.2018 of the High Court of

Madhya Pradesh at Jabalpur in Cr. A. No.261 of 1995

Appearances for Parties

Varun Thakur, Ramkaran, Ms. Shraddha Saran, Brajesh Pandey,

Varinder Kumar Sharma, Advs. for the Appellants.

Pashupathi Nath Razdan, Vikas Bansal, Mirza Kayesh Begg, Ms.

Maitreyee Jagat Joshi, Astik Gupta, Ms. Akanksha Tomar, Argha Roy,

Ms. Ojaswini Gupta, Ms. Ruby, Advs. for the Respondent.

50 [2024] 4 S.C.R.

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Judgment / Order of the Supreme Court

Judgment

B.R. Gavai, J.

1. The present appeal challenges the judgment dated 6th April 2018

passed by the High Court of Madhya Pradesh at Jabalpur in Criminal

Appeal No. 261 of 1995, thereby allowing the appeal of the respondentState which was filed challenging the judgment dated 26th March 1994

passed in S.T. No. 160 of 1992, vide which the learned 2nd Class

Sessions Judge, Damoh (hereinafter referred to as ‘the learned trial

Judge’) had acquitted the appellants of the charges under Sections

302, 201 and 34 of the Indian Penal Code, 1860 (hereinafter referred

to as ‘IPC’). The High Court, reversing the judgment of the learned

trial Judge, had convicted the appellant No. 1 (Ballu Chaurasiya @

Balram @ Balmukund) under Sections 302 and 201/34 of IPC and

appellant No. 2 (Halki Bahu @ Jamna Bai @ Jamuna Bai) under

Sections 302/34 and 201 of IPC and awarded rigorous imprisonment

for life under Sections 302 and 302/34 with fine of Rs. 1000/-, in default

of payment of fine to further undergo rigorous imprisonment for three

months. Insofar as Sections 201 and 201/34 of IPC are concerned,

the High Court further awarded sentence of rigorous imprisonment

for seven years with a fine of Rs. 3000/-, in default of payment of fine

to further undergo rigorous imprisonment for 5 months.

2. The prosecution story in brief is as under:

2.1 The deceased-Mahesh Sahu was in a love relation with Anita,

who is the daughter of respondent No.2-Jamna Bai (appellant

No.2 herein) and sister of Ballu @ Balram @ Balmukund

(appellant No.1 herein). Anita and deceased Mahesh Sahu

resided at Agra for about eight months and then returned to

Damoh. Thereafter, the marriage of Anita was solemnized with

another person. Even then, they were in contact with each other.

Due to this enmity, on 7th June, 1992 at about 11:00 P.M., the

appellants caused death of the deceased in furtherance of their

common intention. The prosecution relies on the evidence of

Govind (PW-7), who saw that appellant No. 1 was dragging

a dead body from his house. He had also seen his mother,

appellant No. 2, who was washing the blood stains at the door

of their house. 

[2024] 4 S.C.R. 51

Ballu @ Balram @ Balmukund and Another v.

The State of Madhya Pradesh

2.2 After Beni Prasad @ Beri Prasad (PW-1) and Sumitra Bai (PW6), who are the father and mother of the deceased, came to

know about the incident, they came to the spot of the incident.

On the basis of the oral report of PW-1, an FIR (Exh. P-1) came

to be registered at Police Station, Damoh.

2.3 Upon completion of the investigation, the chargesheet came

to be filed in the Court of Judicial Magistrate First Class. Since

the case was exclusively triable by the learned trial Judge, it

was committed to the learned trial Judge.

2.4 At the conclusion of the trial, the learned trial Judge has acquitted

the accused persons since the prosecution has failed to prove

the case beyond reasonable doubt. The respondent-State

preferred an appeal before the High Court.

2.5 The High Court, by the impugned judgment, reversed the finding

of the learned trial Judge, as aforesaid.

2.6 Being aggrieved thereby, the present appeal.

3. We have heard Mr. Varun Thakur, learned counsel appearing on

behalf of the appellants and Shri Pashupathi Nath Razdan, learned

counsel for the respondent-State.

4. Mr. Varun Thakur, learned counsel, submits that the High Court

has grossly erred in reversing the well-reasoned judgment of

acquittal. He submits that the learned trial Judge by giving elaborate

reasonings, found that the prosecution has failed to prove the

case beyond reasonable doubt. He submits that the High Court

in a cursory manner interfered with the said finding. He submits

that the present case is a case of circumstantial evidence and

unless the prosecution is able to prove the chain of circumstances

beyond reasonable doubt it is not permissible to interfere with the

findings of the trial Judge and to record the finding of conviction.

He further submits that, in an appeal arising from acquittal, the

scope is limited. Unless the finding is shown to be perverse or

impossible, it will not be permissible for the Appellate Court to

interfere with the same.

5. Shri Pashupathi Nath Razdan, learned counsel for the respondentState, on the contrary, submits that the learned trial Judge has

totally misread the evidence. He submits that the evidence of Beni 

52 [2024] 4 S.C.R.

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Prasad (PW-1) and Sumitra Bai (PW-6), coupled with the medical

evidence, would show that the prosecution has proved the case

beyond reasonable doubt.

6. Undoubtedly, the prosecution case rests on circumstantial evidence.

The law with regard to conviction on the basis of circumstantial

evidence has very well been crystalized in the judgment of this Court

in the case of Sharad Birdhichand Sarda v. State of Maharashtra1

,

wherein this Court held thus:

“152. Before discussing the cases relied upon by the High

Court we would like to cite a few decisions on the nature,

character and essential proof required in a criminal case

which rests on circumstantial evidence alone. The most

fundamental and basic decision of this Court is Hanumant

v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952

SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This case

has been uniformly followed and applied by this Court in

a large number of later decisions up-to-date, for instance,

the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh

[(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v.

State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC

656]. It may be useful to extract what Mahajan, J. has laid

down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC

343 : 1952 SCR 1091 : 1953 Cri LJ 129] :

“It is well to remember that in cases where

the evidence is of a circumstantial nature, the

circumstances from which the conclusion of

guilt is to be drawn should in the first instance

be fully established, and all the facts so

established should be consistent only with the

hypothesis of the guilt of the accused. Again,

the circumstances should be of a conclusive

nature and tendency and they should be such

as to exclude every hypothesis but the one

proposed to be proved. In other words, there

must be a chain of evidence so far complete

as not to leave any reasonable ground for a

1 [1985] 1 SCR 88 : (1984) 4 SCC 116 : 1984 INSC 121

[2024] 4 S.C.R. 53

Ballu @ Balram @ Balmukund and Another v.

The State of Madhya Pradesh

conclusion consistent with the innocence of the

accused and it must be such as to show that

within all human probability the act must have

been done by the accused.”

153. A close analysis of this decision would show that the

following conditions must be fulfilled before a case against

an accused can be said to be fully established:

(1) the circumstances from which the conclusion

of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the

circumstances concerned “must or should” and not “may

be” established. There is not only a grammatical but a

legal distinction between “may be proved” and “must be

or should be proved” as was held by this Court in Shivaji

Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC

793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where

the observations were made: [SCC para 19, p. 807: SCC

(Cri) p. 1047]

“Certainly, it is a primary principle that the

accused must be and not merely may be guilty

before a court can convict and the mental

distance between ‘may be’ and ‘must be’ is

long and divides vague conjectures from sure

conclusions.”

(2) the facts so established should be consistent

only with the hypothesis of the guilt of the

accused, that is to say, they should not be

explainable on any other hypothesis except that

the accused is guilty,

(3) the circumstances should be of a conclusive

nature and tendency,

(4) they should exclude every possible hypothesis

except the one to be proved, and

(5) there must be a chain of evidence so

complete as not to leave any reasonable ground

for the conclusion consistent with the innocence 

54 [2024] 4 S.C.R.

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of the accused and must show that in all human

probability the act must have been done by the

accused.

154. These five golden principles, if we may say so,

constitute the panchsheel of the proof of a case based

on circumstantial evidence.”

7. It can thus clearly be seen that it is necessary for the prosecution

that the circumstances from which the conclusion of the guilt is to be

drawn should be fully established. The Court holds that it is a primary

principle that the accused ‘must be’ and not merely ‘may be’ proved

guilty before a court can convict the accused. It has been held that

there is not only a grammatical but a legal distinction between ‘may

be proved’ and ‘must be or should be proved’. It has been held that

the facts so established should be consistent only with the guilt of

the accused, that is to say, they should not be explainable on any

other hypothesis except that the accused is guilty. It has further been

held that the circumstances should be such that they exclude every

possible hypothesis except the one to be proved. It has been held that

there must be a chain of evidence so complete as not to leave any

reasonable ground for the conclusion consistent with the innocence

of the accused and must show that in all human probabilities the act

must have been done by the accused.

8. It is settled law that the suspicion, however strong it may be, cannot

take the place of proof beyond reasonable doubt. An accused cannot

be convicted on the ground of suspicion, no matter how strong it is.

An accused is presumed to be innocent unless proved guilty beyond

a reasonable doubt.

9. Apart from that, it is to be noted that the present case is a case

of reversal of acquittal. The law with regard to interference by the

Appellate Court is very well crystallized. Unless the finding of acquittal

is found to be perverse or impossible, interference with the same

would not be warranted. Though, there are a catena of judgments

on the issue, we will only refer to two judgments which the High

Court itself has reproduced in the impugned judgment, which are

as reproduced below:

“13. In case of Sadhu Saran Singh vs. State of U.P.

(2016) 4 SCC 397, the Supreme Court has held that:- 

[2024] 4 S.C.R. 55

Ballu @ Balram @ Balmukund and Another v.

The State of Madhya Pradesh

“In an appeal against acquittal where the

presumption of innocence in favour of the

accused is reinforced, the appellate Court would

interfere with the order of acquittal only when

there is perversity of fact and !aw. However,

we believe that the paramount consideration

of the Court is to do substantial justice and

avoid miscarriage of justice which can arise

by acquitting the accused who is guilty of an

offence. A miscarriage of justice that may occur

by the acquittal of the guilty is no less than from

the conviction of an innocent. Appellate Court,

while enunciating the principles with regard to

the scope of powers of the appellate Court in

an appeal against acquittal, has no absolute

restriction in law to review and relook the entire

evidence on which the order of acquittal is

founded.”

14. Similar, In case of Harljan Bhala Teja vs. State of

Gujarat (2016) 12 SCC 665, the Supreme Court has

held that:-

“No doubt, where, on appreciation of evidence

on record, two views are possible, and the

trial court has taken a view of acquittal, the

appellate court should not interfere with the

same. However, this does not mean that in all

the cases where the trial court has recorded

acquittal, the same should not be interfered

with, even if the view is perverse. Where the

view taken by the trial court is against the

weight of evidence on record, or perverse, it is

always open far the appellate court to express

the right conclusion after re-appreciating the

evidence If the charge is proved beyond

reasonable doubt on record, and convict the

accused.”

10. In view of the above settled principles of law, we will have to examine

the present case.

56 [2024] 4 S.C.R.

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11. It is not in dispute that the death of the deceased is a homicidal death

and as such, it will not be necessary to refer to the medical evidence.

The only question that remains is as to whether the prosecution has

proved its case beyond reasonable doubt and as to whether the

appellants are guilty of committing the crime.

12. Learned trial Judge, by elaborately discussing the evidence, had

found that the appellants were not guilty. We crystallize the findings

of the learned trial Judge, as under:

12.1 Beni Prasad (PW-1), who is the father of the deceased, had

deposed that when he went to call his son Mahesh Sahu for

dinner then Mahesh Sahu was standing at the Chowk with

Pappu Tamrakar and two boys. Mahesh Sahu told him that he

would come later, then Beni Prasad (PW-1) went to his house

and fell asleep and later at night around 11:45 P.M., one boy

came to him and told him that Ballu Chaurasiya (appellant

No. 1), Santosh Chaurasiya and other persons were beating

Mahesh Sahu. On hearing this, he ran towards the house of

Ballu Chaurasiya wearing chaddhi and baniyan. He saw that

Ballu Charuasiya, Santosh Chaurasiya and his two brothers

were dragging Mahesh Sahu in dead condition and put his body

10 feet away from their house. After that the accused Ballu

Chaurasiya went inside his house. Beni Prasad (PW-1) went

near the place where Mahesh Sahu’s body was lying and he

found him to be dead. At that point of time, Sumitra Bai (PW6), the mother of the deceased also came there and she saw

that Jamuna Bai (appellant No. 2), who is the mother of the

accused Ballu Chaurasiya, was cleaning the blood on the door.

12.2 Beni Prasad deposed that in the last month of the year 1991

(December 1991) his son Mahesh Sahu went to Bhopal for

an interview and there was no news about him for about eight

months. Thereafter, a letter came to him from his son in the

fourth month of the year 1992 (April 1992) informing him that

he was working at Agra and that he had married a girl named

Anita, who is the sister of the accused/appellant No. 1 Ballu

Chaurasiya. Thereafter, the deceased Mahesh Sahu and Anita

returned to Damoh (in the fourth month of the year 1992 i.e.,

April 1992), and Anita started living in her house and thereafter

Anita was married to another person in Ujjain by her brother 

[2024] 4 S.C.R. 57

Ballu @ Balram @ Balmukund and Another v.

The State of Madhya Pradesh

Ballu Chaurasiya (appellant No. 1). Thereafter, Anita left for

her in-laws house and thereafter correspondence of letters

started between Mahesh Sahu and Anita. He stated that this

correspondence of letters was not liked by Ballu Chaurasiya

(appellant No. 1) and he started to give death threats to

Mahesh Sahu.

12.3 The learned trial Judge found that the statement given by Beni

Prasad (PW-1), before the trial Judge was totally contrary to his

statement recorded under Section 161 of the Code of Criminal

Procedure, 1973 (Exh. D/1). It was found that Beni Prasad

(PW-1) had totally improved his story in his deposition before

the Court. Learned trial Judge also found the behaviour of

Beni Prasad (PW-1) to be abnormal. In his cross-examination,

Beni Prasad (PW-1) admitted that when he saw four persons

dragging the dead body, he said nothing because he was alone.

However, he admitted that the dead body of Mahesh Sahu

was lying in a dense basti and people have houses around

the said place and there was also a dispensary of the (Nagar

Palika) Municipality situated at Gauri Shankar Temple, about

9 feet away from his house. Learned trial Judge also found

that within the same dispensary itself, the Police Chowki was

situated, manned by hawaldar and constables. The learned

trial Judge found that the conduct of the Beni Prasad (PW-1)

in not informing about the dead body of the deceased being

dragged away to anyone and particularly at the Police Chowki

which was hardly any distance from the place of occurrence

to be absolutely unnatural. The learned trial judge found

that when a panchnama of the dead body (Exh. P-2) was

being conducted, he did not give the name of the killers. The

explanation given by Beni Prasad (PW-1) was that the police

did not ask him. The learned trial Judge also found that Beni

Prasad (PW-1) admitted in his evidence that at the time of

panchnama of dead body (Exh. P-2), there was a crowd of

around 150 people.

12.4 Ms. Sumitra Bai (PW-6), mother of the deceased, also stated

about the relationship between the deceased Mahesh Sahu

and Anita. She stated that the accused/appellant No. 1 Ballu

Chaurasiya was threatening the deceased Mahesh Sahu on a

day prior to the date of the incident. She also informed about 

58 [2024] 4 S.C.R.

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one boy coming at about 11:45 P.M./12 A.M. and informing

her that a fight was going on between Mahesh Sahu and Ballu

Chaurasiya. When she went to the house of the accused,

she saw accused Ballu Chaurasiya, his elder brother, his

manjhla brother and accused Jamuna Bai dragging her son

and leaving her son in front of bade father’s house. Learned

trial Judge found that the evidence of this witness was also

totally improvised. Learned trial Judge also found that there

was extreme exaggeration in the depositions given by this

witness in the Court as compared to the statements under

Section 161 Cr.P.C. (Exh. D-2). The learned trial Judge, as a

result, disbelieved the evidence of these two witnesses, i.e.,

the father and mother of the deceased.

12.5 Learned trial Judge also found that the prosecution had relied

on the evidence of Raju (PW-4), Dharmendra Singh (PW-5)

and Govind (PW-7) to establish the circumstances regarding

the accused being last seen with the deceased Mahesh Sahu.

Further all these three witnesses had turned hostile and not

supported the prosecution case.

12.6 Learned trial Judge also discarded the circumstances relied

on by the prosecution regarding cutting the nails of both the

hands of the accused Ballu Chaurasiya and the said nails

containing the blood of the deceased Mahesh Sahu. Learned

trial Judge also found that the nails were cut after a period of

six days from the date of the incident. The prosecution has also

relied on the circumstances of recovery of the blood stained

clothes and the knife. Learned trial Judge found that the said

circumstances were also of no assistance in the case of the

prosecution, inasmuch as there were no evidence to show that

the blood found on these articles was a human blood.

12.7 Insofar as the circumstances with regard to the mother of the

appellant No. 1, Jamuna Bai (appellant No. 2), are concerned,

the learned trial Judge found that the independent witnesses

had turned hostile, and the only evidence in that regard was

that of S.K. Banerjee @ S.K. Banerji @ Sukant Banerjee/

Investigating Officer (PW-15).

12.8 Learned trial Judge found that Rajesh Kumar (PW-14), who

was a panch witness, in his evidence, had stated that the 

[2024] 4 S.C.R. 59

Ballu @ Balram @ Balmukund and Another v.

The State of Madhya Pradesh

deceased was his cousin brother and he has signed the

documents on the directions of the S.K. Banerjee/Investigating

Officer (PW-15). As such, the learned trial Judge found that

the circumstances with regard to the memorandum under

Section 27 of the Evidence Act, 1872 and subsequent recovery

was also not proved beyond reasonable doubt. Learned trial

Judge further found that though from the panchnama, it was

shown that the blood was found at various places, he had not

made any attempt to seize the samples nor had he provided

an explanation as to why he had not seized the samples of

the said blood.

12.9 Learned trial Judge found that the knife was seized on

a memorandum of the accused (Exh. P-14) on 14th June

1992 from an open place in the same room as mentioned in

panchnama (Exh. P-11). Learned trial Judge also found that

if immediately on the next day of incident, the Investigating

Officer had visited and searched the room but he did not see

the knife, then the subsequent recovery of knife from the very

same room appears to be planted.

12.10 Learned trial Judge also found that though the incident was of

7th June 1992 at around 12:00 A.M. and it had been reported

to the Investigating Officer at 12:40 A.M., the arrest of the

accused persons had been made only on 15th June 1992, which

creates a doubt on the prosecution version. This is more so

when the distance between the place of occurrence and the

police station is hardly 1 to 1 ½ kms.

13. The above points, that we have culled out from the judgment of

the learned trial Judge, make it clear that the learned trial Judge

has done a very elaborate exercise of discussing the evidence in

great detail. We therefore would not like to burden our judgment

with more details. The aforesaid points are more than sufficient to

come to a conclusion that the prosecution has failed to prove any

of the incriminating circumstances beyond reasonable doubt and in

no case, the chain of circumstances, which was so interlinked to

each other that leads to no other conclusion, than the guilt of the

accused persons. We have no hesitation to hold that the findings

of the learned trial Judge are based on correct appreciation of the

material placed on record. 

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14. This elaborate exercise of the learned trial Judge, has been washed

away by the learned Division Bench of the High Court in a totally

cursory manner. Insofar as the testimony of Beni Prasad (PW-1) and

Sumitra Bai (PW-6) is concerned, the Division Bench of the High

Court observed thus:

 “8.…...After considering the entire testimony of Beni

Prasad (PW-1) and Sumitra Bai (PW-6) we come to the

conclusion that there are improvements and exaggerations

in their court statement. But on this ground their whole

testimony cannot be brushed out as the principle “Falsus

in uno, Falsus in Omnibus” is not applicable in criminal

trial. Sometimes, the witnesses are in fear that if their

testimony cannot be relied upon by the Court, the main

culprit may be acquitted. Therefore, naturally they improve

their statement to some extent.”

15. The testimony of S.K. Banerjee/Investigating Officer (PW-15), which

has been disbelieved by the learned trial Judge, giving sound reasons,

has been believed by the learned Division Bench of the High Court,

by placing it in paragraph 12 as under:

“12. We do not find any reason to disbelieve the testimony

of Investigation Officer who impartially performed his duty

with sincerity. He had no enmity with the respondents or

relationship with the deceased. Therefore, we are inclined

to rely upon his testimony. It cannot be brushed aside

simply on the basis of conjectures and surmises in favour

of the respondents.”

16. We find that the learned trial Judge had given sound and cogent

reasons for discarding the testimony of the IO and the other witnesses.

We are of the view that the High Court has totally erred in observing

that the trial Judge had brushed aside the evidence of the IO simply

on the basis of conjectures and surmises. Rather, it is the judgment

of the High Court which is based on conjectures and surmises.

17. After reproducing the aforementioned two judgments of this Court,

discussing the settled law on the scope of an appeal against acquittal,

the Division Bench of the High Court observed thus:

“15. As discussed above, we find that there is sufficient

ground to reverse the impugned the judgment. Dr. 

[2024] 4 S.C.R. 61

Ballu @ Balram @ Balmukund and Another v.

The State of Madhya Pradesh

J.P.Parsai (PW-8) examined respondent No. 1 Ballu. He

found some injuries on the body of respondent no. 1 which

also indicate that before the death, the deceased struggled

to save himself from the respondents. Dr. J.P.Parsai took

sample of nails of both the hands of the deceased and

sent them for FSL examination.”

18. After discussing this, the High Court noted that the articles which

were seized by S.K. Banerjee/Investigating Officer (PW-15) contained

blood stains as per the FSL report. The High Court observed that the

accused failed to offer any explanation with regard to the presence

of blood on these articles. The High Court observed thus:

“18...Respondent No. 1 did not offer any explanation with

regard to presence of blood on these articles. This is a

strong link along with the blood marks of dragging found

from the house of the respondent to the spot where the

body of the deceased was lying. This establishes that the

respondents committed murder of the deceased Mahesh

because he had love relation with Anita. After his death,

six love letters of Anita were found in the pocket of the

deceased which indicates that Anita also wanted to reside

with the deceased against the will and consent of her

family members.”

19. At the cost of repetition, we are compelled to say that the findings

of the High Court are totally based on conjectures and surmises.

Though the High Court has referred to the law laid down by this

Court with regard to the scope of interference in an appeal against

acquittal, the High Court has totally misapplied the same and a

very well-reasoned judgment based upon the correct appreciation

of evidence by the trial Court has been reversed by the High Court,

only on the basis of conjectures and surmises.

20. The High Court could have interfered in the criminal appeal only if

it came to the conclusion that the findings of the trial Judge were

either perverse or impossible. As already discussed hereinbefore, no

perversity or impossibility could be found in the approach adopted

by the learned trial Judge.

21. In any case, even if two views are possible and the trial Judge found

the other view to be more probable, an interference would not have 

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been warranted by the High Court, unless the view taken by the

learned trial Judge was a perverse or impossible view.

22. In that view of the matter, we find that the judgment passed by the

High Court is totally unsustainable in law.

23. In the result, we pass the following order:

(i) The appeal is allowed;

(ii) The impugned judgment dated 6th April 2018 passed by the

High Court of Madhya Pradesh at Jabalpur in Criminal Appeal

No. 261 of 1995 is quashed and set aside; and

(iii) The accused persons (appellants herein) are acquitted of all the

charges they were charged with. The appellants are already on

bail. Hence, their bail bonds shall stand discharged.

24. Pending application(s), if any, shall stand disposed of.

Headnotes prepared by: Divya Pandey Result of the case:

Appeal allowed.