* Author [2024] 4 S.C.R. 328 : 2024 INSC 294 Subhash @ Subanna & Ors. v. State of Karnataka Ministry of Home Affairs (Criminal Appeal No. 328 of 2012) 10 April 2024 [Sudhanshu Dhulia and Prasanna B. Varale,* JJ.] Issue for Consideration Matter pertains to the correctness of the order passed by the High Court convicting and sentencing accused no. 1 u/s. 302, and accused no. 2 and 4 u/ss. 324 and 326 IPC. Headnotes Penal Code, 1860 – ss. 302 and 324 – Murder – Voluntarily causing hurt by dangerous weapon or means – Right of private defence, if applicable – On facts, morning incident wherein quarrel between the complainant and accused on account of blocking the way and accused persons hurled abuses to her – In the evening, the complainant informed her father about the incident, the father-victim went to the house of accused persons to enquire, wherein he was assaulted by the accused persons, resulting in his death – Complainant, her brother and mother followed the victim and witnessed the attack – Accused no. 1 convicted and sentenced for offence punishable u/s. 302, and accused no. 2 and 4 u/ss. 324 and 326 and others u/s. 323, by the courts below – Interference: Held: On the assessment of the evidence of the prosecution, it reveals that though there was a verbal exchange between the victim and the accused persons, but not in the form of a provocation by the victim to the accused – Evidence clearly show that that there was a dispute on account of the pathway; that the victim was alone, he went to the house of the accused persons to make an inquiry, but he had not entered in the house and on the contrary, accused persons armed with stick, chopper and stone attacked the victim; and that neither the complainant nor her brother carried any weapon – Evidence of the injured eyewitnesses shows that the intention of the accused was to do away with the victim – If right of private defence is applied and the facts are appreciated, it is clear that the victim was unarmed, [2024] 4 S.C.R. 329 Subhash @ Subanna & Ors. v. State of Karnataka Ministry of Home Affairs whereas the accused persons who were armed led a brutal attack on the victim by stick, by koita and stone – High Court rightly upheld the judgment and order of trial court, thus, does not call for interference. [Paras 28-34, 36] Case Law Cited Darshan Singh v. State of Punjab and Another [2010] 1 SCR 642 : AIR (2010) SC 1212; Virsa Singh v. State of Punjab [1958] 1 SCR 1495 : AIR (1958) SC 465 – referred to. List of Acts Penal Code, 1860. List of Keywords Murder; Right of private defence; Provocation; Injured eyewitnesses. Case Arising From CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 328 of 2012 From the Judgment and Order dated 20.04.2011 of the High Court of Karnataka at Gulbarga in CRLA No. 3601 of 2010 Appearances for Parties Ms. Kiran Suri, Sr. Adv., S.J. Amith, Ms. Vidushi Garg, Dr. Mrs. Vipin Gupta, Advs. for the Appellants. D. L. Chidananda, Ravindera Kumar Verma, Advs. for the Respondent. Judgment / Order of the Supreme Court Judgment Prasanna B. Varale, J. 1. By way of present appeal, the appellants challenged the judgment and order dated 20th April, 2011 passed by the High Court of Karnataka in Criminal Appeal No. 3601/2010, thereby confirming the conviction and sentence of the Trial Court in Sessions Case No.213/2009 which had convicted appellants (accused Nos. 1, 2 and 4) under Section 302 of IPC and sentenced them to life imprisonment. Additionally the High Court also upheld the conviction and sentence of appellant 330 [2024] 4 S.C.R. Digital Supreme Court Reports Nos.1 and 3 (accused Nos 2 & 4) under Sections 324 and 326 of IPC as awarded by Trial Court. 2. The First Information Report No.18/2009 was lodged at Kamalpur Police Station, Gulbarga against the accused persons for commission of offences under Section 143, 147, 148, 504, 323, 324 and 302 r/w Section 149 of Indian Penal Code, on the basis of complaint submitted by Kumari Sangeeta D/o Mahadevappa Natikar. The Complaint refers to the incident occurred on 18th February, 2009 at 7.00 a.m. (we may refer to this incident as a prequel to the fateful incident which occurred on the same day in the evening). It was submitted in the report that a day earlier i.e., on 17th February, 2009, uncle of the complainant brought fire wood which was dumped on the way, blocking the path of the complainant. Thus, Sangeeta tried to reach the said path to throw dust, at that time she found that her pathway was covered with the fire wood. As such, she demanded an explanation from her uncle Subhash. She raised question as to why the way is blocked, to which her uncle Subhash, his wife and his children responded by abusing Sangeeta. Sangeeta then returned to her house. Her father, mother and brothers by that time had already left for the fields. In the evening, her father and brothers i.e. Mahadevappa, Hanumantha and Sharanappa, respectively were apprised about the incident which took place in the morning. Her father Mahadevappa then proceeded towards the house of uncle – Subhash and made an enquiry as to why the way was blocked. Subhash and the other family members started abusing Mahadevappa and then they assaulted Mahadevappa with a stick on his forehead and face, causing grievous injuries to Mahadevappa. 3. Dattatrey (appellant No.2), who was carrying chopper laid an assault on the forehead and head of Mahadevappa, causing grievous injuries to Mahadevappa. Digambar (appellant No.3) threw a big stone below the right knee of Mahadevappa, resulting in grievous blood injuries. Then Digambar picked up a stone in his hand and hit Mahadevappa on his face causing injury. 4. Sangeeta, her brother Sharanappa and mother who had followed Mahadevappa, saw the attack on Mahadevappa and younger brother of Sangeeta made an attempt to intervene in the attack, who was in turn attacked by Digambar, receiving injuries on his hand and palm. On hearing hue and cry, residents of the area [2024] 4 S.C.R. 331 Subhash @ Subanna & Ors. v. State of Karnataka Ministry of Home Affairs namely; Parameshwar S/o Ningappa Pujari and other neighbours rushed to the spot. When Mahadevappa was brought to his house, he was unconscious as he had received grievous injuries. Uncle of Sangeeta, Shivasharanappa along with other persons namely; Sharanappa and Parameshwar Poojari arranged for a jeep and Mahadevappa was admitted in the Government Hospital, Gulbarga. The Doctors of the Gulbarga Hospital declared Mahadevappa dead and his body was sent for autopsy. 5. On lodging of the First Information report, the Investigating Agency was set in motion. By completing the necessary formalities of the investigation, such as recording the statement of witnesses, drawing “panchanama”; spot mahazar, seizure mahazars etc. and by collecting the medical evidence in the form of post mortem report issued by the concerned medical officer, charge sheet came to be filed against the accused persons. 6. Accused persons pleaded not guilty and were subjected to trial. 7. On appreciation of the evidence, the learned Sessions Judge convicted the appellants and sentenced them for the offence punishable under Section 302 to undergo life imprisonment and also pay fine of Rs. 10,000/- each (in default S.I. for two years each). Accused nos. 2 and 4 were also convicted for offence punishable under Section 324 of Indian Penal Code and sentenced to undergo R.I. for one year and to pay fine of Rs. 1,000/- each (in default S.I. for six months each). Accused 2 and 4 were also convicted for offence punishable under Section 326 of Indian Penal Code and were sentenced to undergo R.I. for three years each and to pay fine of Rs. 2,000/- each (in default S.I. for one year each). Whereas accused No.3, 5 and 6 were found guilty for the offences punishable under Section 323 of Indian Penal Code and sentence to pay fine of Rs. 500/- each (in default S.I. for two months each). The entire sentence imposed against accused 2 and 4 was directed to run concurrently. 8. Accused Nos. 3, 5 and 6 accepted the judgment and order of the Sessions Court as they have not filed any appeal to the High Court against the judgment and order of Sessions Court, whereas accused Nos.1, 2 and 4 filed their appeal to the High Court of Karnataka. As stated above, the High Court of Karnataka upheld and confirmed the order of the Trial Court. 332 [2024] 4 S.C.R. Digital Supreme Court Reports 9. The learned counsel for the appellants submitted that assuming that the prosecution was successful in establishing the death of the deceased and the presence of the appellants on the spot, as well as the active role played by the appellants; the entire material collected by the prosecution shows that it was the deceased who came to the house of the accused and then there was a quarrel and verbal exchange between them. The act of the accused persons, the verbal exchange and the provocation by the deceased and his family members prompted the appellants to exercise the right of their private defence. 10. Learned counsel for the appellants further submits that the evidence collected by the prosecution also shows that the incident was a reaction of the appellants to a provocation by the deceased and his family members. The element of intention of the appellants is not established by the prosecution. Thus, the submission of the learned counsel for the appellants was that the act of the appellants would not attract Section 302 of Indian Penal Code against them and the offences would be at the most, an offence under Section 304 part 2 of Indian Penal Code. 11. Per contra, learned counsel representing the State of Karnataka supported the judgment and order passed by the High Court of Karnataka, upholding the judgment and order of the Sessions Court. 12. We have gone through the record. The prosecution in support of its case, examined as many as 31 witnesses and is supported by P.W.18 Ramalingappa, P.W.19 Smt. Mallamma, P.W.20 Shobhavati, P.W.21 Sangeeta, P.W.22 Sharanappa, P.W.23 Hanmanth, P.W.24 – Prameshwar, P.W.25 Shivasharanappa and P.W.12 Dr. Balachandra Joshi. The majority of other witnesses, who are neighbours of the deceased Mahadevappa, have turned hostile. 13. P.W.17 Sareppa, turned hostile and he has not supported the prosecution on the aspect of dispute between the complainant’s family and the accused family. He supports the case of prosecution that land of deceased and accused are abutting to each other. 14. P.W.18 Ramalingappa supports the version of complainant – Sangeeta, that to reach the land of deceased Mahadevappa, they have to pass through the land of the accused and there was a dispute between Mahadevappa and appellant No.1 on the issue of way. [2024] 4 S.C.R. 333 Subhash @ Subanna & Ors. v. State of Karnataka Ministry of Home Affairs 15. Now, to establish the death of Mahadevappa being a homicidal one, the prosecution mainly draws support from the testimony of P.W.12 Dr. Balachandra Joshi who in his testimony before the Trial Court states that he was working as Senior specialist since June, 2006 in Government Hospital, Gulbarga. On 19.02.2009 he had conducted post mortem on the dead body of Mahadevappa in between 12.30 p.m., to 2.00 p.m., and he noticed the following external injuries: 1. “Cut Lacerated wound on the forehead between the eye brows measuring 6 x 2 x bone deep underlying major bones fractured. 2. Lacerated wound on the face left side at the angle of the mouth, margins irregular underlying upper jaw bone fracture and loosening of teeths left side cheek bone also fractured. 3. Cut lacerated wound on chin measuring 5 x 3 cm x bone deep, evidence of bleeding was present, underlying mandible bone was fractured. 4. Cut lacerated wound on the frontal region of the scalp and forehead in the middle measuring 10 x 3 cm x bone deep clot formation present. 5. Cut lacerated wound scalp on left side frontal region measuring 10 cm x 4 cm x bone deep clot formation present. 6. Cut lacerated wound on scalp on the top slightly to the right side 12 cm x 4 cm x bone deep, evidence of haemorrhage or bleeding present clot formation present. 7. Punctual wound on the right side of leg below the right knee measuring 6 x 5 x 3 cm underlying leg bone fracture. 8. Fracture of 3rd, 4th, 5th ribs on the anterior side on right side of chest wall. All the above injuries are ante mortem in nature.” 16. He further states that, in his opinion cause of death is shock and haemorrhage to the brain due to injury and multiple fracture injuries. 334 [2024] 4 S.C.R. Digital Supreme Court Reports 17. Nothing could be elicited in his cross-examination and P.W.12 Dr Balachandra Joshi stood firm on the aspect of the homicidal death of Mahadevappa. 18. As stated above, even the appellants are not seriously disputing the homicidal death of Mahadevappa. Insofar as their presence and active role played by them is concerned, P.W.21 Sangeeta provides all the necessary details in her testimony about the morning incident i.e., prequel and about the actual incident which took place in the evening. Though she was subjected to a detailed cross-examination, her version remains to be unshaken and appears to be a truthful version of the incident. 19. Similarly, P.W.19 Smt. Mallamma, who is the daughter of the deceased Mahadevappa (elder sister of Sangeeta), P.W.22 Sharanappa (s/o Mahadevappa and brother of Sangeeta), P.W.23 Hanumanth (brother of Sangeeta, Mallamma and Sharanappa), also supported the case of prosecution on the aspect of the presence and active role played by the appellants causing the homicidal death of Mahadevappa. 20. P.W.29 – Dr. Basawaswamy, supported the case of the prosecution on the aspect of Sharanappa and Sangeeta receiving the injuries. 21. Dr. Basawaswamy in his testimony states that on 18.02.2009 he examined Sharanappa s/o Mahadevappa who was injured. He came to the hospital with a history of assault and on his examination Dr. Basawswamy noticed the following injuries: 1. “2 x 1 cm incised wound over the dorsal aspect of right little finger bleeding present, margins are clean cut. 2. Swelling present over the dorsa aspect of the right hand. 3. Abrasion over the dorsal aspect of right forearm size 3 x 3 cm. Taken X ray of right hand, crack fracture of 5th metacarpal bone. Wound No.2 is pre4vious in nature, other wounds are simple in nature might have been cause by sharp and blunt object. Age of the injury about less than 4 hours.” [2024] 4 S.C.R. 335 Subhash @ Subanna & Ors. v. State of Karnataka Ministry of Home Affairs 22. Similarly, on the very same day, he examined another injured by name Sangeeta D/o Mahadevapa and noticed the following injuries: 1. “Tenderness present over the left elbow. 2. Contusion over the posterior aspect of lower 1/3rd of left arm measuring 3 x 2 cm. 3. Tenderness present over the left palm. 4. Tenderness present over the posterior aspect of left shoulder. 23. Thus, version of Dr. Basawaswamy supports the case of the prosecution on the aspects i.e., the presence of the prosecution witnesses Sharanappa and Sangeeta on the spot and their attempt to interfere to save their father Mahadevappa from the attack of the accused/appellants, and receiving injuries in that process. 24. Now, although the learned counsel for the appellants vehemently submitted before us that the act of the appellants was in exercise of the right of private defence and as such, offence under Section 302 of Indian Penal code is not attracted against them, we are, however, unable to accept this submission on appreciation of the evidence. 25. P.W.21 the star witness of the prosecution i.e., Kumari Sangeeta – the complainant and injured eyewitness, clearly states about the incident (prequel) which took place in the morning i.e., a quarrel between herself and accused No.2 initially and then abuses by accused Nos.1 and 3 to her. Then she states that on return of her father Mahadevappa to their home in the evening, she apprised him about the morning incident, after which Mahadevappa then proceeded to house of the accused to make inquiry about the incident and that he was immediately followed by her and her younger brother after which she speaks about the role played by each of the accused–appellants. 26. She states that appellant No.1 thrashed her father with stick on his head, appellant No.2 assaulted her father with chopper (koita) on his head and forehead, then accused No.4 threw a stone on his right knee and he picked up another stone and punched it on the mouth of her father. Her mother Shobhavati and her brothers also stated about the active role played by the accused–appellants. 27. P.W.25 Shivasharanappa though he had not witnessed the evening incident, but he stated about the morning incident i.e., the quarrel 336 [2024] 4 S.C.R. Digital Supreme Court Reports between the complainant and accused on account of blocking the way. 28. As stated above, on careful scrutiny of the version of the witnesses, it clearly shows that though it was the submission of the counsel for the appellants that the deceased himself went to the house of the accused and picked up a quarrel with the accused persons upon provocation by the deceased, the appellants exercised their right of private defence, yet on the assessment of the evidence of the prosecution, we were unable to find any such provocation by the deceased Mahadevappa. 29. The evidence clearly show that Mahadevappa was alone, he went to the house of appellants to make an inquiry, but he had not entered in his house and on the contrary, accused No.1 Subhash s/o Shivaray Natikar thrashed the deceased using stick on the head of Mahadevappa. Accused No. 2 – Dattatrey s/o Subhash Natikar thrashed the head of Mahadevappa using chopper. Using a dangerous weapon like chopper (koita), he assaulted Mahadevappa on his head and forehead. As if this was not sufficient enough, accused No.4 –Digambar threw a stone on the right knee of Mahadevappa and then picking up another stone hit it on the face of deceased. 30. The prosecution evidence further reveals that neither Sharanappa nor Sangeeta were carrying any weapon. Even though the evidence further reveals that there was a verbal exchange, but there is nothing to show that this verbal exchange was in the form of a provocation by the deceased to the appellants. 31. Though the learned counsel for the appellants raised this ground before this Court, no such ground is raised either at the time of examination of the witnesses or even in 313 statements of the appellants, i.e. at the trial stage. 32. The learned counsel for the appellants also made an attempt to submit before us that the prosecution failed to show that the appellants were carrying any intention to lay an assault on the deceased Mahadevappa as Mahadevappa himself went to the house of appellants. 33. We are unable to accept even this submission. The evidence clearly shows that there was a dispute on account of the way on 18.02.2009 leading to quarrel between P.W.21-Sangeeta and accused No.2 initially and then accused No.1 and 3 abused Sangeeta. Mahadevappa [2024] 4 S.C.R. 337 Subhash @ Subanna & Ors. v. State of Karnataka Ministry of Home Affairs proceeded to the house of accused persons for making an enquiry, as he was appraised by Sangeeta when he returned to their home. The evidence also shows that accused no.1 was armed with stick, accused no.2 was armed with chopper and accused no.4 picked up the stones lying on the spot. 34. P.W.22 Sharanappa clearly states in his deposition before the Court that the appellant no.2 who was armed with chopper threatened his father by uttering the words “I shall finish you” and then assaulted his father with the chopper. Thus, the evidence of these injured eyewitnesses clearly shows that the intention of the accused person was to do away with Mahadevappa. It may not be out of place to state here that the High Court while considering the submission on this aspect of exercising their right of private defence referred to the judgement in the case of Darshan Singh v. State of Punjab and Another1 relied on by the learned counsel for the appellant. The apex Court in this judgment observed in para 33 as follows: “The basic principle underlying the doctrine of right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending anger not of selfcreation. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.” Now, if this principle is applied and the facts of the present case are appreciated, it is clear that the victim Mahadevappa was unarmed, whereas the accused persons who were armed led a brutal attack on the victim Mahadevappa by stick, by koita and stone. 35. The learned advocate for the State was justified in placing reliance on the judgment of this Court in the matter of Virsa Singh v. State of Punjab.2 The relevant paras are as follows: 1 [2010] 1 SCR 642 : AIR 2010 SC 1212 2 [1958] 1 SCR 1495 : AIR 1958 SC 465 338 [2024] 4 S.C.R. Digital Supreme Court Reports "13. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, or course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on common sense: the kind of enquiry that “twelve good men and true” could readily appreciate and understand. 14. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 “thirdly”. 15. First, it must establish, quite objectively, that a bodily injury is present. 16. Secondly, the nature of the injury must be proved; These are purely objective investigations. 17. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. 18. Once these three elements are proved to be present, the enquiry proceeds further and. 19. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. [2024] 4 S.C.R. 339 Subhash @ Subanna & Ors. v. State of Karnataka Ministry of Home Affairs 20. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 “thirdly”. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even mater that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences: and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional (emphasis supplied).” 36. Accordingly, considering all the aspects, we are of the opinion that the High Court of Karnataka committed no error in upholding and confirming the judgment and order of Trial Court/Sessions Court, we see no ground to interfere, the appeal thus fails and is dismissed. 37. The order dated 31.07.2018 of this Court by which bail was granted to the appellants is hereby recalled. The appellants are directed to surrender before the Trial Court within a period of four weeks from today. Headnotes prepared by: Nidhi Jain Result of the case: Appeal dismissed.

* Author

[2024] 4 S.C.R. 523 : 2024 INSC 282

Karim Uddin Barbhuiya

v.

Aminul Haque Laskar & Ors.

(Civil Appeal No. 6282 of 2023)

08 April 2024

[Aniruddha Bose and Bela M. Trivedi*, JJ.]

Issue for Consideration

Whether an election petition alleging corrupt practice in the nature

of undue influence and alleging improper acceptance of nomination

is to be rejected under Order VII Rule 11 CPC when material facts

as required under s. 83 of the Representation of People Act, 1951

(RP Act) are not pleaded and where no grounds as contemplated

under s. 100 RP Act are made out.

Headnotes

Representation of People Act, 1951 – Election petition filed

under ss. 100(1)(b) and 100(1)(d)(i) RP Act to declare election

of Appellant void – Allegation raised regarding false statement,

suppression and misrepresentation of facts regarding

educational qualification and suppression of fact regarding

financial liability – Same amounting to corrupt practice u/s.

100(1)(b) RP Act – Further alleging improper acceptance of

nomination u/s. 100(1)(d)(i) RP Act – Application filed by

Appellant under Order VII Rule 11 CPC r/w s. 87 RP Act for

rejection of petition – High Court dismissed said application.

Held: RP Act is self-contained code – Any rights claimed in

relation to election, election dispute must be found therein – If

allegations in petition do not set out grounds contemplated by

s. 100 RP Act and do not conform to requirement of ss. 81 and

83 RP Act, election petition liable to be rejected under Order VII

Rule 11 CPC – Pleadings to be precise, specific, unambiguous

– Material facts to be pleaded to show cause of action – When

alleging corrupt practice in nature of undue influence, pleadings

must state full particulars as required u/s. 83(1)(b) RP Act regarding

direct or indirect interference or attempt to interfere by candidate,

with free exercise of electoral right as required u/s. 123(2) RP Act

– When alleging improper acceptance of nomination, particulars

showing how such improper acceptance materially affected result 

524 [2024] 4 S.C.R.

Digital Supreme Court Reports

of election must be present – Omission of single material fact

leading to incomplete cause of action would entail rejection of

election petition under Order VII Rule 11 CPC r/w ss. 83 and 87

RP Act. [Paras 12-15, 19-24]

Case Law Cited

Bhagwati Prasad Dixit ‘Ghorewala’ v. Rajeev Gandhi

[1986] 2 SCR 823 : [1986] 4 SCC 78; Dhartipakar

Madan Lal Agarwal v. Rajiv Gandhi [1987] 3 SCR

369 : [1987] Supp SCC 93; Laxmi Narayan Nayak

v. Ramratan Chaturvedi & Ors [1989] Supp. 2 SCR

581 : [1990] 2 SCC 173; Kanimozhi Karunanidhi v.

A. Santhana Kumar & Ors [2023] 4 SCR 798 : 2023

SCC Online SC 573; Azhar Hussain v. Rajiv Gandh

[1986] 2 SCR 782 : [1986] Supp. SCC 315; Samant N.

Balkrishna & Anr. v. George Fernandez & Ors. [1969]

3 SCR 603 : [1969] 3 SCC 238; Shri Udhav Singh v.

Madhav Rao Scindia [1976] 2 SCR 246 : [1977] 1 SCC

511 - relied on.

List of Acts

The Representation of the People’s Act, 1951; The Conduct of

Election Rules, 1961; Code of Civil Procedure, 1908.

List of Keywords

Corrupt practice; Undue influence; Improper acceptance of

nomination; Material facts not pleaded in election petition;

Incomplete cause of action; Rejection of election petition.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6282 of 2023

From the Judgment and Order dated 26.04.2023 of the Gauhati High

Court in IA(C) No. 1278 of 2021

Appearances for Parties

Kapil Sibal, Dr. Menaka Guruswamy, Sr. Advs., Fuzail Ahmad Ayyubi,

Mustafa Khaddam Hussain, Mohammad Nizamuddin Pasha, Ms.

Rupali Samuel, Ibad Mushtaq, Ms. Akanksha Rai, Utkarsh Pratap,

Lavkesh Bhambhani, Harshvardhan Thakur, Ms. Gurneet Kaur, Advs.

for the Appellant.

[2024] 4 S.C.R. 525

Karim Uddin Barbhuiya v. Aminul Haque Laskar & Ors.

Jaideep Gupta, Dilip Majumder, Sr. Advs., Adeel Ahmed, Abdur

Razzaque Bhuyan, Ms. Racheeta Chawla, Ms. Sana Parveen, Ms.

Anupama Gupta, Ms. Riya Dutta, Piyush Sachdeva, Md Gouse

Muddin Khan, Raja Chatterjee, Abhaya Nath Das, Yogendra Kumar

Verma, B C Bhatt, Ms. Beena, Budha Deo Prasad, Sandeep Kumar,

V K Shukla, Mrs. Leelawati Suman, Satish Kumar, Advs. for the

Respondents.

Judgment / Order of the Supreme Court

Judgment

Bela M. Trivedi, J.

1. The instant Appeal filed by the appellant - Karim Uddin Barbhuiya

(Original Respondent No. 1) is directed against the impugned

judgment and order dated 26.04.2023 passed by the Gauhati High

Court at Guwahati in I.A. (Civil) No. 1278 of 2021 in Election Petition

No. 01 of 2021, whereby the High Court has dismissed the said IA

filed by the present appellant under Order VII Rule 11 CPC seeking

rejection of the Election Petition filed by the respondent No. 1 - Aminul

Haque Laskar (Original Election Petitioner).

2. A brief conspectus of relevant facts may be stated as under:

(i) On 05.03.2021, General Election to the Legislative Assembly

of Assam was notified by the Election Commission of India,

whereunder the last date for filing of nomination papers was

12.03.2021.

(ii) On 11.03.2021, the appellant filed his nomination papers as a

candidate of All India United Democratic Front (AIUDF) along

with the Declaration, by way of an affidavit in Form-26 of The

Conduct of Election Rules, 1961 (hereinafter referred to as

the Said Rules). The last date for scrutiny of nomination papers

was 15.03.2021.

(iii) On 01.04.2021, the election for the Legislative Assembly

Constituency no. 10, Sonai was concluded and the appellant

secured 71,937 votes out of total votes polled, while the

respondent no. 1 herein secured 52,283 votes in his favour.

(iv) On 04.06.2021, the respondent no. 1 (Election Petitioner) filed

the Election Petition being no. 01 of 2021 before the High 

526 [2024] 4 S.C.R.

Digital Supreme Court Reports

Court under Section 100(1)(b) and Section 100(1)(d)(i) of The

Representation of the People’s Act, 1951 (hereinafter referred

to as the RP Act) questioning the election of the appellant, mainly

making four allegations - (a) false declaration of educational

qualification of B.A. (b) suppression of the educational

qualification of Diploma in Engineering (c) suppression of bank

loan details of M/s. Allied Concern and (d) suppression of unliquidated provident fund dues.

(v) On 24.06.2021, the High Court issued notice in the said Election

Petition.

(vi) On 23.08.2021, the appellant herein (Original Respondent

No.1-Returned Candidate) filed an application under Order VII

Rule 11, CPC read with Section 86 of the RP Act for rejection

of the Election Petition, which was registered as I.A (Civil) No.

1278 of 2021 in the said Election Petition.

(vii) On 26.04.2023, the High Court passed the impugned judgment

dismissing the said I.A. filed by the appellant. Hence, the present

Appeal has been filed.

3. The Appeal has been contested by the respondent no. 1 and the

respondent no. 13 by filing their respective counter affidavits.

4. We have heard the learned Senior Counsel Mr. Kapil Sibal for the

appellant and Mr. Jaideep Gupta for the respondent no.1 at length.

5. Learned Senior Advocate Mr. Kapil Sibal appearing for the appellant

vehemently submitted that the respondent no. 1 has sought to upset

the election results by filing the baseless, motivated and malafide

election petition, based on mere bald allegations that the information

disclosed in Form No. 26 filed by the appellant along with his

nomination form was inaccurate. None of the allegations made in

the Election Petition is supported by either primary documents or

reliable source of information. The pleadings in the Election Petition

are not the averments of material facts but are facts based speculation

and do not disclose any triable issue. He further submitted that the

Election Petition does not disclose a complete cause of action, nor

does it contain all “material facts” as required under Section 83(1)

(a) and also does not plead “full particulars” of the alleged corrupt

practice of undue influence, as required under Section 81(1)(b) of

the RP Act.

[2024] 4 S.C.R. 527

Karim Uddin Barbhuiya v. Aminul Haque Laskar & Ors.

6. Mr. Sibal taking us to the particulars disclosed by the appellant

in Form No. 26 submitted that there was neither suppression of

educational qualification nor suppression of bank loan details or

of un-liquidated provident fund dues, as alleged by the respondent

no.1. He further submitted that the respondent no. 1 had admittedly

not raised any objection in writing at the time of scrutiny of the

nomination papers by the Returning Officer, and therefore it could

not be said that there was improper acceptance of nomination of the

appellant. He pressed into service various provisions contained in

the RP Act, particularly Section 100 and Section 123 to submit that

the allegations and averments made in the Election Petition could

never constitute “undue influence” much less “corrupt practices” as

contemplated in Section 123, for declaring the Election to be void

under Section 100 of the RP Act. Much reliance has been placed by

him on the decision of this court in case of Kanimozhi Karunanidhi

Vs. A. Santhana Kumar and Others1 to submit that the Election

Petition filed by the respondent no. 1 be dismissed at the threshold

under Order VII Rule 11, CPC read with Section 83 of the RP Act.

7. The learned Senior Advocate Mr. Jaideep Gupta per contra submitted

that the election of the appellant is liable to be set aside firstly on the

ground that the nomination paper of the appellant was improperly

accepted, as the affidavit in the Form-26 filed by the appellant

along with his nomination paper, contained false statements with

regard to his educational qualification and his liability in respect of

the loan and his default in the deposit of employer’s contribution

of provident fund as the partner of the Partnership firm. He further

submitted that the election is also liable to be set aside on the

ground of the appellant having indulged into corrupt practices, he

having failed to make the disclosures as required by the RP Act

and by the judicial pronouncements by this Court. According to him,

the RP Act was amended with effect from 24.08.2002 incorporating

therein Section 33A in the RP Act and incorporating Rule 4A in

the Conduct of Election Rules, 1961 with effect from 03.09.2002,

prescribing the form of affidavit to be filed by the candidate at the

time of delivering the nomination paper in Form-26 to the said

Rules. In Lok Prahari vs. Union of India & Others2

, this Court

1 [2023] 4 SCR 798 : 2023 SCC Online SC 573

2 (2018) 4 SCC 699 

528 [2024] 4 S.C.R.

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has held that non-disclosure would amount to “undue influence”

as defined in the RP Act. Further relying on the decision in case of

Krishnamoorthy vs. Sivakumar and Others3

, he submitted that

if the “corrupt practice” is alleged under Section 100(1)(b), it is not

necessary to state that the “corrupt practice” has materially affected

the outcome of the election. Lastly, he submitted that there are

number of triable issues involved in the Election Petition, and the

cause of action also having been disclosed in the Election Petition,

the High Court has rightly rejected the application of the appellant

under Order VII Rule 11, CPC, which order being just and legal,

this Court may not interfere with the same.

8. Before adverting to the rival contentions raised by the learned counsel

for the parties, let us glance over the relevant provisions of the RP

Act. Part-V of the RP Act deals with the Conduct of Elections, and

Chapter-I thereof deals with the Nomination of Candidates. Section

33A contained in the said Chapter pertains to the obligation of the

candidate to furnish the information as stated therein, and Section

36 thereof pertains to the scrutiny of nominations. Rule 4A of the

said Rules requires the candidate or his proposer, as the case may

be, to file an affidavit in Form-26 at the time of delivering nomination

paper. The said rule 4A reads as under:

“4A. Form of affidavit to be filed at the time of delivering

nomination paper. — The candidate or his proposer, as

the case may be, shall, at the time of delivering to the

returning officer the nomination paper under sub-section

(1) of section 33 of the Act, also deliver to him an affidavit

sworn by the candidate before a Magistrate of the first

class or a Notary in Form 26.”

9. Section 80 of the RP Act states that no election shall be called in

question except by an Election Petition presented in accordance with

the provisions of Part-VI. Section 81 pertains to the presentation of

the Election Petition. Section 82 pertains to the parties to the Election

Petition. Section 83 pertaining to the contents of the Election Petition,

being relevant for the purposes of this appeal, it is reproduced as

under: -

3 (2015) 3 SCC 467

[2024] 4 S.C.R. 529

Karim Uddin Barbhuiya v. Aminul Haque Laskar & Ors.

“83. Contents of petition. — (1) An election petition—

(a) shall contain a concise statement of the material facts

on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice

that the petitioner alleges, including as full a statement

as possible of the names of the parties alleged to have

committed such corrupt practice and the date and

place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the

manner laid down in the Code of Civil Procedure,

1908 (5 of 1908) for the verification of pleadings:

[Provided that where the petitioner alleges any corrupt

practice, the petition shall also be accompanied by an

affidavit in the prescribed form in support of the allegation

of such corrupt practice and the particulars thereof.]

(2) Any schedule or annexure to the petition shall also be

signed by the petitioner and verified in the same manner

as the petition.”

10. Section 87 lays down the procedure to be followed before the High

Court, which inter alia states that subject to the provisions of the

RP Act and of any Rules made thereunder, every Election Petition

shall be tried by the High Court, as nearly as may be, in accordance

with procedure applicable under the Code of Civil Procedure, 1908.

Section 100 deals with the grounds for declaring the election to be

void, which reads as under: -

“100. Grounds for declaring election to be void. —

(1) Subject to the provisions of sub-section (2) if the

High court is of opinion—

(a) that on the date of his election a returned

candidate was not qualified, or was disqualified,

to be chosen to fill the seat under the Constitution

or this Act 5 [or the Government of Union

Territories Act, 1963 (20 of 1963)]; or

(b) that any corrupt practice has been committed by

a returned candidate or his election agent or by 

530 [2024] 4 S.C.R.

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any other person with the consent of a returned

candidate or his election agent; or

(c) that any nomination has been improperly

rejected; or

(d) that the result of the election, in so far as

it concerns a returned candidate, has been

materially affected—

(i) by the improper acceptance or any

nomination, or

(ii) by any corrupt practice committed in the

interests of the returned candidate 6 [by

an agent other than his election agent], or

(iii) by the improper reception, refusal or

rejection of any vote or the reception of

any vote which is void, or

(iv) by any non-compliance with the provisions

of the Constitution or of this Act or of any

rules or orders made under this Act,

the High Court shall declare the election of

the returned candidate to be void.

(2) If in the opinion of the High Court, a returned candidate

has been guilty by an agent, other than his election

agent, of any corrupt practice but the High Court is

satisfied—

(a) that no such corrupt practice was committed at

the election by the candidate or his election agent,

and every such corrupt practice was committed

contrary to the orders, and without the consent, of

the candidate or his election agent;

- Clause (b) omitted by Act 58 of 1958, s. 30 (w.e.f.

30-12-1958).

(c) that the candidate and his election agent took all

reasonable means for preventing the commission of

corrupt practices at the election; and 

[2024] 4 S.C.R. 531

Karim Uddin Barbhuiya v. Aminul Haque Laskar & Ors.

(d) that in all other respects the election was free from

any corrupt practice on the part of the candidate or

any of his agents, then the High Court may decide

that the election of the returned candidate is not void.”

11. Section 123 deals with the “Corrupt Practices”, which covers the

“undue influence” as the corrupt practice for the purposes of the RP

Act. The relevant part of Section 123 reads as under: -

“123. Corrupt practices. —The following shall be deemed

to be corrupt practices for the purposes of this Act: —

(1) ….

(2) Undue influence, that is to say, any direct or indirect

interference or attempt to interfere on the part of the

candidate or his agent, or of any other person 7 [with

the consent of the candidate or his election agent],

with the free exercise of any electoral right:

Provided that—

(a) without prejudice to the generality of the

provisions of this clause any such person as is

referred to therein who—

(i) threatens any candidate or any elector,

or any person in whom a candidate or

an elector is interested, with injury of

any kind including social ostracism and

ex-communication or expulsion from any

caste or community; or

(ii) induces or attempts to induce a candidate

or an elector to believe that he, or any

person in whom he is interested, will

become or will be rendered an object of

divine displeasure or spiritual censure,

shall be deemed to interfere with the free

exercise of the electoral right of such

candidate or elector within the meaning

of this clause;

(b) a declaration of public policy, or a promise of

public action, or the mere exercise of a legal 

532 [2024] 4 S.C.R.

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right without intent to interfere with an electoral

right, shall not be deemed to be interference

within the meaning of this clause.

(3) to (8) ……….”

12. At the outset, it may be noted that as per the well settled legal position,

right to contest election or to question the election by means of an

Election Petition is neither common law nor fundamental right. It is

a statutory right governed by the statutory provisions of the RP Act.

Outside the statutory provisions, there is no right to dispute an election.

The RP Act is a complete and self-contained code within which any

rights claimed in relation to an election or an election dispute must

be found. The provisions of Civil Procedure Code are applicable to

the extent as permissible under Section 87 of the RP Act.

13. It hardly needs to be reiterated that in an Election Petition,

pleadings have to be precise, specific and unambiguous, and

if the Election Petition does not disclose a cause of action, it is

liable to be dismissed in limine. It may also be noted that the

cause of action in questioning the validity of election must relate

to the grounds specified in Section 100 of the RP Act. As held

in Bhagwati Prasad Dixit ‘Ghorewala’ vs. Rajeev Gandhi4 and

in Dhartipakar Madan Lal Agarwal vs. Rajiv Gandhi5, if the

allegations contained in the petition do not set out the grounds as

contemplated by Section 100 and do not conform to the requirement

of Section 81 and 83 of the Act, the pleadings are liable to be

struck off and the Election Petition is liable to be rejected under

Order VII, Rule 11 CPC.

14. A beneficial reference of the decision in case of Laxmi Narayan

Nayak vs. Ramratan Chaturvedi and Others6 be also made, wherein

this Court upon review of the earlier decisions, laid down following

principles applicable to election cases involving corrupt practices: -

“5. This Court in a catena of decisions has laid down the

principles as to the nature of pleadings in election cases,

the sum and substance of which being:

4 [1986] 2 SCR 823 : (1986) 4 SCC 78

5 [1987] 3 SCR 369 : (1987) Supp SCC 93

6 [1989] Supp. 2 SCR 581 : (1990) 2 SCC 173

[2024] 4 S.C.R. 533

Karim Uddin Barbhuiya v. Aminul Haque Laskar & Ors.

(1) The pleadings of the election petitioner in his

petition should be absolutely precise and clear

containing all necessary details and particulars

as required by law vide Dhartipakar Madan Lal

Agarwal v. Rajiv Gandhi [1987 Supp SCC 93] and

Kona Prabhakara Rao v. M. Seshagiri Rao [(1982)

1 SCC 442] .

(2) The allegations in the election petition should not be

vague, general in nature or lacking of materials or

frivolous or vexatious because the court is empowered

at any stage of the proceedings to strike down or

delete pleadings which are suffering from such vices

as not raising any triable issue vide Manphul Singh v.

Surinder Singh [(1973) 2 SCC 599: (1974) 1 SCR 52],

Kona Prabhakara Rao v. M. Seshagiri Rao [(1982)

1 SCC 442] and Dhartipakar Madan Lal Agarwal v.

Rajiv Gandhi [1987 Supp SCC 93] .

(3) The evidence adduced in support of the pleadings

should be of such nature leading to an irresistible

conclusion or unimpeachable result that the allegations

made, have been committed rendering the election

void under Section 100 vide Jumuna Prasad

Mukhariya v. Lachhi Ram [(1955) 1 SCR 608 : AIR

1954 SC 686] and Rahim Khan v. Khurshid Ahmed

[(1974) 2 SCC 660] .

(4) The evidence produced before the court in support

of the pleadings must be clear, cogent, satisfactory,

credible and positive and also should stand the test

of strict and scrupulous scrutiny vide Ram Sharan

Yadav v. Thakur Muneshwar Nath Singh [(1984) 4

SCC 649] .

(5) It is unsafe in an election case to accept oral evidence

at its face value without looking for assurances

for some surer circumstances or unimpeachable

documents vide Rahim Khan v. Khurshid Ahmed

[(1974) 2 SCC 660] , M. Narayana Rao v. G. Venkata

Reddy [(1977) 1 SCC 771: (1977) 1 SCR 490] ,

Lakshmi Raman Acharya v. Chandan Singh [(1977) 

534 [2024] 4 S.C.R.

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1 SCC 423: (1977) 2 SCR 412] and Ramji Prasad

Singh v. Ram Bilas Jha [(1977) 1 SCC 260] .

(6) The onus of proof of the allegations made in the

election petition is undoubtedly on the person who

assails an election which has been concluded vide

Rahim Khan v. Khurshid Ahmed [(1974) 2 SCC 660],

Mohan Singh v. Bhanwarlal [(1964) 5 SCR 12 : AIR

1964 SC 1366] and Ramji Prasad Singh v. Ram Bilas

Jha [(1977) 1 SCC 260].”

15. The legal position with regard to the non-compliance of the requirement

of Section 83(1)(a) of the RP Act and the rejection of Election Petition

under Order VII Rule 11, CPC has also been regurgitated recently

by this Court in case of Kanimozhi Karunanidhi vs. A. Santhana

Kumar and Others (supra): -

“28. The legal position enunciated in afore-stated cases

may be summed up as under: —

i. Section 83(1)(a) of RP Act, 1951 mandates that an

Election petition shall contain a concise statement

of material facts on which the petitioner relies. If

material facts are not stated in an Election petition,

the same is liable to be dismissed on that ground

alone, as the case would be covered by Clause (a)

of Rule 11 of Order 7 of the Code.

ii. The material facts must be such facts as would afford

a basis for the allegations made in the petition and

would constitute the cause of action, that is every fact

which it would be necessary for the plaintiff/petitioner

to prove, if traversed in order to support his right to

the judgment of court. Omission of a single material

fact would lead to an incomplete cause of action and

the statement of plaint would become bad.

iii. Material facts mean the entire bundle of facts which

would constitute a complete cause of action. Material

facts would include positive statement of facts as also

positive averment of a negative fact, if necessary.

iv. In order to get an election declared as void under

Section 100(1)(d)(iv) of the RP Act, the Election 

[2024] 4 S.C.R. 535

Karim Uddin Barbhuiya v. Aminul Haque Laskar & Ors.

petitioner must aver that on account of noncompliance with the provisions of the Constitution or

of the Act or any rules or orders made under the Act,

the result of the election, in so far as it concerned the

returned candidate, was materially affected.

v. The Election petition is a serious matter and it cannot

be treated lightly or in a fanciful manner nor is it given

to a person who uses it as a handle for vexatious

purpose.

vi. An Election petition can be summarily dismissed on

the omission of a single material fact leading to an

incomplete cause of action, or omission to contain

a concise statement of material facts on which the

petitioner relies for establishing a cause of action, in

exercise of the powers under Clause (a) of Rule 11 of

Order VII CPC read with the mandatory requirements

enjoined by Section 83 of the RP Act.”

16. Bearing in mind the aforestated legal position, let us consider the

averments and allegations made by the respondent no. 1 in the

Election Petition in which the election of the Appellant is sought to

be challenged basically on two grounds: (1) that the appellant has

committed corrupt practice and (2) the result of the election in so

far as it concerned the appellant, was materially affected by the

improper acceptance of his nomination. In short, the respondent no.

1 has invoked Section 100(1)(b) and Section 100(1)(d)(i) of the Act,

for declaring the election of the Appellant as void.

17. As transpiring from the Election Petition, the respondent no.1

along with 13 other candidates including the present appellant had

submitted their nomination papers for LA - 10 Sonai LAC, however

according to the respondent no. 1, the affidavit in Form 26 filed by the

appellant along with his nomination paper was invalid and defective

as the same contained false statements, and suppression and

misrepresentation of facts with regard to the educational qualification

and suppression of facts with regard to his liability in respect of

the loan availed by him by way of a Cash Credit Limit (CCL) for

a partnership firm namely M/s. Allied Concern of which he was an

active partner, and suppression of facts with regard to his default

in deposit of employer’s contribution of provident fund in respect of 

536 [2024] 4 S.C.R.

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the employees of the said M/s. Allied Concern. As regards the false

claim of educational qualification, the respondent no.1 has alleged

in the Election petition inter alia that the appellant had mentioned in

Column no. 9 of his affidavit in Form 26 appended to his nomination

paper that his educational qualification was Bachelor of Arts (B.A.)

which he passed from Chaudhary Charan Singh University, Meerut

in Uttar Pradesh in the year 2019, but the appellant had never

passed B.A. from the said University or from any other Institution

or University. It is further alleged in the Election petition that the

appellant did not mention about his so-called technical qualification

of diploma in Civil Engineering in the nomination paper, which he

had mentioned in the affidavit in Form 26 when he contested 2016

General Election. The respondent no. 1 has also alleged that though

the appellant was a partner in M/s. Allied Concern, which availed

a loan from United Bank of India (PNB), Tarapur Branch at Silchar,

the appellant had deliberately suppressed the details of the CC

Limit Loan Account with the said bank and also the defaults made in

repayment of the said loan. The respondent no. 1 has also alleged

that the appellant had deliberately not mentioned about the liabilities

of the appellant as the partner of M/s. Allied Concern with regard

to the employer’s contribution of provident fund for its employees.

According to the respondent no. 1 he had raised an objection before

the returning officer on the date of scrutiny that is on 15.03.2021 that

the appellant did not possess the educational qualification of B.A.

from Chaudhary Charan Singh University, Meerut and therefore his

nomination paper was liable to be rejected. According to him, another

independent candidate Karim Uddin Barbhuiya, (the respondent no.

8 in the Election petition) had also raised an objection by submitting

a written complaint dated 15.03.2021 before the returning officer,

however the returning officer had failed to exercise his jurisdiction

and authority under Section 36 of the RP Act and refused to make

even a summary enquiry by calling upon the appellant to meet with

the objections raised by him. Thus, according to the respondent no.

1, there was an improper acceptance of the nomination paper of

the appellant. He also alleged that the misrepresentation and false

representation of educational qualification by the appellant in the

affidavit in Form 26 and suppression and misrepresentation of the

liability of the appellant in the said affidavit in respect of the cash credit

facility, and non-disclosure of the default of the appellant in respect

of his liabilities towards employer’s contribution to the provident fund 

[2024] 4 S.C.R. 537

Karim Uddin Barbhuiya v. Aminul Haque Laskar & Ors.

tantamount to commission of “Corrupt practice” of undue influence

within the meaning of Section 123(2) of the RP Act. The respondent

no. 1 therefore has filed the Election Petition under Section 100 of

the Act seeking declaration that the election of the appellant - the

returned candidate, was void.

18. The appellant, who is respondent no. 1 in the Election petition

before the High Court, had submitted an I.A. being no. 1278 of 2021

seeking rejection of the Election petition under Order VII Rule 11 of

CPC read with Section 87 of the RP Act. It was contended by the

appellant in the said application that the paragraphs alleging “Corrupt

practices” of undue influence contained in the Election petition do

not constitute “material facts” of alleged Corrupt practices so as to

give rise to a cause of action for filing the Election Petition. None

of the statements made in the various paragraphs of the Election

petition could be said to be a Concise statement of “material facts”

or “material particulars” to give rise to a cause of action with triable

issues on falsity in nomination papers, improper acceptance of

nomination paper and commission of corrupt practice.

19. Now, from the bare reading of the Election petition, it emerges that

the respondent no. 1 has made only bald and vague allegations

in the Election Petition without stating the material facts in support

thereof as required to be stated under Section 83(1)(a) of the RP

Act. Apart from the fact that none of the allegations with regard to

the false statements, and suppression and misrepresentation of

facts allegedly made by the respondent no. 1 with regard to his

educational qualification or with regard to his liability in respect of

the loan availed by him for his partnership firm or with regard to his

default in depositing the employer’s contribution to provident fund,

would fall within the definition of “Corrupt practice” of “undue influence”

as envisaged in Section 123(2) of the RP Act, the Election petition

also lacks concise statement of “material facts” as contemplated

in Section 83(a), and lacks “full particulars” of the alleged Corrupt

practice as contemplated in Section 83(b) of the RP Act.

20. So far as the allegations of “Corrupt practice” are concerned, the

respondent no. 1 was required to make concise statement of material

facts as to how the appellant had indulged into “Corrupt practice”

of undue influence by directly or indirectly interfering or attempted

to interfere with the free exercise of any electoral right. Mere bald 

538 [2024] 4 S.C.R.

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and vague allegations without any basis would not be sufficient

compliance of the requirement of making a concise statement of

the “material facts” in the Election Petition. The material facts which

are primary and basic facts have to be pleaded in support of the

case set up by the Election petitioner to show his cause of action.

Any omission of a single material fact would lead to an incomplete

cause of action entitling the returned candidate to pray for dismissal

of Election petition under Order VII Rule 11(a) of CPC read with

Section 83(1)(a) of the RP Act. The said legal position has been well

settled by this Court in Azhar Hussain vs. Rajiv Gandhi7

, wherein

this Court after referring to the earlier pronouncements in Samant

N. Balkrishna and Another vs. George Fernandez and Others8

and Shri Udhav Singh vs. Madhav Rao Scindia9

, observed that

the omission of a single material fact would lead to incomplete cause

of action, and that an Election petition without the material facts is

not an Election petition at all. It was further held that all the facts

which are essential to clothe the petition with complete cause of

action must be pleaded and omission of even a single material fact

would amount to disobedience of the mandate of Section 83(1)(a)

of the Act and an Election petition can be and must be dismissed,

if it suffers from any such vice.

21. It is also pertinent to note at this juncture that a charge of “Corrupt

practice” is easy to level but difficult to prove because it is in the

nature of criminal charge and has got to be proved beyond doubt.

The standard of proof required for establishing a charge of “Corrupt

practice” is the same as is applicable to a criminal charge. Therefore,

Section 83(1)(b) mandates that when the allegation of “Corrupt

practice” is made, the Election Petition shall set forth full particulars

of the corrupt practice that the Election Petitioner alleges, including

as full a statement as possible of the names of parties alleged to

have committed such corrupt practice and the date and place of

the commission of each such practice. The pleadings with regard

to the allegation of corrupt practice have to be precise, specific and

unambiguous whether it is bribery or undue influence or other corrupt

practices as stated in Section 123 of the Act. If it is corrupt practice

7 [1986] 2 SCR 782 : (1986) Supp. SCC 315

8 [1969] 3 SCR 603 : (1969) 3 SCC 238

9 [1976] 2 SCR 246 : (1977) 1 SCC 511

[2024] 4 S.C.R. 539

Karim Uddin Barbhuiya v. Aminul Haque Laskar & Ors.

in the nature of undue influence, the pleadings must state the full

particulars with regard to the direct or indirect interference or attempt

to interfere by the candidate, with the free exercise of any electoral

right as stated in Section 123(2) of the Act. We are afraid, Mr. Gupta

has failed to point out from the pleadings of the Election petition as

to how the appellant had interfered or attempted to interfere with

the free exercise of any electoral right so as to constitute “undue

influence” under Section 123(2) of the Act.

22. So far as the ground contained in clause (d) of Section 100(1) of

the Act, with regard to improper acceptance of the nomination of

the Appellant is concerned, there is not a single averment made in

the Election Petition as to how the result of the election, in so far as

the appellant was concerned, was materially affected by improper

acceptance of his nomination, so as to constitute a cause of action

under Section 100(1)(d)(i) of the Act. Though it is true that the

Election Petitioner is not required to state as to how corrupt practice

had materially affected the result of the election, nonetheless it is

mandatory to state when the clause (d)(i) of Section 100(1) is invoked

as to how the result of election was materially affected by improper

acceptance of the nomination form of the Appellant.

23. As transpiring from the Election Petition, the respondent no. 1 himself

had not raised any objection in writing against the nomination filed

by the Appellant, at the time of scrutiny made by the Returning

Officer under Section 36 of the Act. According to him, he had raised

oral objection with regard to the education qualification stated by

the Appellant in the Affidavit in Form-26. If he could make oral

objection, he could as well, have made objection in writing against

the acceptance of nomination of the Appellant, and in that case

the Returning Officer would have decided his objection under subsection (2) of Section 36, after holding a summary inquiry. Even if

it is accepted that he had raised an oral objection with regard to

the educational qualification of the Appellant before the Returning

Officer at the time of scrutiny, the respondent no. 1 has failed

to make averment in the Election Petition as to how Appellant’s

nomination was liable to be rejected by the Returning Officer on

the grounds mentioned in Section 36(2) of the Act, so as to make

his case fall under clause (d)(i) of Section 100(1) that there was

improper acceptance of the nomination of the Appellant. The nonmentioning of the particulars as to how such improper acceptance 

540 [2024] 4 S.C.R.

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of nomination had materially affected the result of the election, is

apparent on the face of the Election Petition.

24. As stated earlier, in Election Petition, the pleadings have to be

precise, specific and unambiguous. If the allegations contained in

Election Petition do not set out grounds as contemplated in Section

100 and do not conform to the requirement of Section 81 and 83

of the Act, the Election Petition is liable to be rejected under Order

VII, Rule 11 of CPC. An omission of a single material fact leading

to an incomplete cause of action or omission to contain a concise

statement of material facts on which the Election petitioner relies

for establishing a cause of action, would entail rejection of Election

Petition under Order VII Rule 11 read with Section 83 and 87 of the

RP Act.

25. In that view of the matter, we are of the opinion that the Election

Petition being No. 1 of 2021 filed by the Respondent No. 1 (Election

Petitioner) before the High Court deserves to be dismissed and is

accordingly dismissed.

26. The Appeal stands allowed accordingly.

Headnotes prepared by: Result of the case:

Aandrita Deb, Hony. Associate Editor Appeal allowed.

(Verified by: Liz Mathew, Sr. Adv.)

Penal Code, 1860 – ss. 302 and 324 – Murder – Voluntarily causing hurt by dangerous weapon or means – Right of private defence, if applicable – On facts, morning incident wherein quarrel between the complainant and accused on account of blocking the way and accused persons hurled abuses to her – In the evening, the complainant informed her father about the incident, the father-victim went to the house of accused persons to enquire, wherein he was assaulted by the accused persons, resulting in his death – Complainant, her brother and mother followed the victim and witnessed the attack – Accused no. 1 convicted and sentenced for offence punishable u/s. 302, and accused no. 2 and 4 u/ss. 324 and 326 and others u/s. 323, by the courts below – Interference:

* Author

[2024] 4 S.C.R. 328 : 2024 INSC 294

Subhash @ Subanna & Ors.

v.

State of Karnataka Ministry of Home Affairs

(Criminal Appeal No. 328 of 2012)

10 April 2024

[Sudhanshu Dhulia and Prasanna B. Varale,* JJ.]

Issue for Consideration

Matter pertains to the correctness of the order passed by the

High Court convicting and sentencing accused no. 1 u/s. 302, and

accused no. 2 and 4 u/ss. 324 and 326 IPC.

Headnotes

Penal Code, 1860 – ss. 302 and 324 – Murder – Voluntarily

causing hurt by dangerous weapon or means – Right of

private defence, if applicable – On facts, morning incident

wherein quarrel between the complainant and accused on

account of blocking the way and accused persons hurled

abuses to her – In the evening, the complainant informed her

father about the incident, the father-victim went to the house

of accused persons to enquire, wherein he was assaulted by

the accused persons, resulting in his death – Complainant,

her brother and mother followed the victim and witnessed the

attack – Accused no. 1 convicted and sentenced for offence

punishable u/s. 302, and accused no. 2 and 4 u/ss. 324 and

326 and others u/s. 323, by the courts below – Interference:

Held: On the assessment of the evidence of the prosecution,

it reveals that though there was a verbal exchange between

the victim and the accused persons, but not in the form of a

provocation by the victim to the accused – Evidence clearly

show that that there was a dispute on account of the pathway;

that the victim was alone, he went to the house of the accused

persons to make an inquiry, but he had not entered in the house

and on the contrary, accused persons armed with stick, chopper

and stone attacked the victim; and that neither the complainant

nor her brother carried any weapon – Evidence of the injured

eyewitnesses shows that the intention of the accused was to do

away with the victim – If right of private defence is applied and

the facts are appreciated, it is clear that the victim was unarmed, 

[2024] 4 S.C.R. 329

Subhash @ Subanna & Ors. v.

State of Karnataka Ministry of Home Affairs

whereas the accused persons who were armed led a brutal attack

on the victim by stick, by koita and stone – High Court rightly

upheld the judgment and order of trial court, thus, does not call

for interference. [Paras 28-34, 36]

Case Law Cited

Darshan Singh v. State of Punjab and Another [2010]

1 SCR 642 : AIR (2010) SC 1212; Virsa Singh v. State

of Punjab [1958] 1 SCR 1495 : AIR (1958) SC 465 –

referred to.

List of Acts

Penal Code, 1860.

List of Keywords

Murder; Right of private defence; Provocation; Injured eyewitnesses.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 328

of 2012

From the Judgment and Order dated 20.04.2011 of the High Court of

Karnataka at Gulbarga in CRLA No. 3601 of 2010

Appearances for Parties

Ms. Kiran Suri, Sr. Adv., S.J. Amith, Ms. Vidushi Garg, Dr. Mrs. Vipin

Gupta, Advs. for the Appellants.

D. L. Chidananda, Ravindera Kumar Verma, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Prasanna B. Varale, J.

1. By way of present appeal, the appellants challenged the judgment and

order dated 20th April, 2011 passed by the High Court of Karnataka

in Criminal Appeal No. 3601/2010, thereby confirming the conviction

and sentence of the Trial Court in Sessions Case No.213/2009 which

had convicted appellants (accused Nos. 1, 2 and 4) under Section

302 of IPC and sentenced them to life imprisonment. Additionally

the High Court also upheld the conviction and sentence of appellant 

330 [2024] 4 S.C.R.

Digital Supreme Court Reports

Nos.1 and 3 (accused Nos 2 & 4) under Sections 324 and 326 of

IPC as awarded by Trial Court.

2. The First Information Report No.18/2009 was lodged at Kamalpur

Police Station, Gulbarga against the accused persons for commission

of offences under Section 143, 147, 148, 504, 323, 324 and 302

r/w Section 149 of Indian Penal Code, on the basis of complaint

submitted by Kumari Sangeeta D/o Mahadevappa Natikar. The

Complaint refers to the incident occurred on 18th February, 2009 at

7.00 a.m. (we may refer to this incident as a prequel to the fateful

incident which occurred on the same day in the evening). It was

submitted in the report that a day earlier i.e., on 17th February, 2009,

uncle of the complainant brought fire wood which was dumped on

the way, blocking the path of the complainant. Thus, Sangeeta tried

to reach the said path to throw dust, at that time she found that her

pathway was covered with the fire wood. As such, she demanded

an explanation from her uncle Subhash. She raised question as

to why the way is blocked, to which her uncle Subhash, his wife

and his children responded by abusing Sangeeta. Sangeeta then

returned to her house. Her father, mother and brothers by that time

had already left for the fields. In the evening, her father and brothers

i.e. Mahadevappa, Hanumantha and Sharanappa, respectively were

apprised about the incident which took place in the morning. Her

father Mahadevappa then proceeded towards the house of uncle

– Subhash and made an enquiry as to why the way was blocked.

Subhash and the other family members started abusing Mahadevappa

and then they assaulted Mahadevappa with a stick on his forehead

and face, causing grievous injuries to Mahadevappa.

3. Dattatrey (appellant No.2), who was carrying chopper laid an assault

on the forehead and head of Mahadevappa, causing grievous injuries

to Mahadevappa. Digambar (appellant No.3) threw a big stone below

the right knee of Mahadevappa, resulting in grievous blood injuries.

Then Digambar picked up a stone in his hand and hit Mahadevappa

on his face causing injury.

4. Sangeeta, her brother Sharanappa and mother who had followed

Mahadevappa, saw the attack on Mahadevappa and younger

brother of Sangeeta made an attempt to intervene in the attack,

who was in turn attacked by Digambar, receiving injuries on his

hand and palm. On hearing hue and cry, residents of the area 

[2024] 4 S.C.R. 331

Subhash @ Subanna & Ors. v.

State of Karnataka Ministry of Home Affairs

namely; Parameshwar S/o Ningappa Pujari and other neighbours

rushed to the spot. When Mahadevappa was brought to his house,

he was unconscious as he had received grievous injuries. Uncle

of Sangeeta, Shivasharanappa along with other persons namely;

Sharanappa and Parameshwar Poojari arranged for a jeep and

Mahadevappa was admitted in the Government Hospital, Gulbarga.

The Doctors of the Gulbarga Hospital declared Mahadevappa dead

and his body was sent for autopsy.

5. On lodging of the First Information report, the Investigating Agency

was set in motion. By completing the necessary formalities of the

investigation, such as recording the statement of witnesses, drawing

“panchanama”; spot mahazar, seizure mahazars etc. and by collecting

the medical evidence in the form of post mortem report issued by

the concerned medical officer, charge sheet came to be filed against

the accused persons.

6. Accused persons pleaded not guilty and were subjected to trial.

7. On appreciation of the evidence, the learned Sessions Judge

convicted the appellants and sentenced them for the offence

punishable under Section 302 to undergo life imprisonment and also

pay fine of Rs. 10,000/- each (in default S.I. for two years each).

Accused nos. 2 and 4 were also convicted for offence punishable

under Section 324 of Indian Penal Code and sentenced to undergo

R.I. for one year and to pay fine of Rs. 1,000/- each (in default S.I.

for six months each). Accused 2 and 4 were also convicted for

offence punishable under Section 326 of Indian Penal Code and

were sentenced to undergo R.I. for three years each and to pay

fine of Rs. 2,000/- each (in default S.I. for one year each). Whereas

accused No.3, 5 and 6 were found guilty for the offences punishable

under Section 323 of Indian Penal Code and sentence to pay fine

of Rs. 500/- each (in default S.I. for two months each). The entire

sentence imposed against accused 2 and 4 was directed to run

concurrently.

8. Accused Nos. 3, 5 and 6 accepted the judgment and order of the

Sessions Court as they have not filed any appeal to the High Court

against the judgment and order of Sessions Court, whereas accused

Nos.1, 2 and 4 filed their appeal to the High Court of Karnataka. As

stated above, the High Court of Karnataka upheld and confirmed

the order of the Trial Court.

332 [2024] 4 S.C.R.

Digital Supreme Court Reports

9. The learned counsel for the appellants submitted that assuming

that the prosecution was successful in establishing the death of

the deceased and the presence of the appellants on the spot, as

well as the active role played by the appellants; the entire material

collected by the prosecution shows that it was the deceased who

came to the house of the accused and then there was a quarrel and

verbal exchange between them. The act of the accused persons,

the verbal exchange and the provocation by the deceased and his

family members prompted the appellants to exercise the right of

their private defence.

10. Learned counsel for the appellants further submits that the evidence

collected by the prosecution also shows that the incident was a

reaction of the appellants to a provocation by the deceased and his

family members. The element of intention of the appellants is not

established by the prosecution. Thus, the submission of the learned

counsel for the appellants was that the act of the appellants would

not attract Section 302 of Indian Penal Code against them and the

offences would be at the most, an offence under Section 304 part

2 of Indian Penal Code.

11. Per contra, learned counsel representing the State of Karnataka

supported the judgment and order passed by the High Court of

Karnataka, upholding the judgment and order of the Sessions Court.

12. We have gone through the record. The prosecution in support of

its case, examined as many as 31 witnesses and is supported by

P.W.18 Ramalingappa, P.W.19 Smt. Mallamma, P.W.20 Shobhavati,

P.W.21 Sangeeta, P.W.22 Sharanappa, P.W.23 Hanmanth, P.W.24 –

Prameshwar, P.W.25 Shivasharanappa and P.W.12 Dr. Balachandra

Joshi. The majority of other witnesses, who are neighbours of the

deceased Mahadevappa, have turned hostile.

13. P.W.17 Sareppa, turned hostile and he has not supported the

prosecution on the aspect of dispute between the complainant’s

family and the accused family. He supports the case of prosecution

that land of deceased and accused are abutting to each other.

14. P.W.18 Ramalingappa supports the version of complainant –

Sangeeta, that to reach the land of deceased Mahadevappa, they

have to pass through the land of the accused and there was a dispute

between Mahadevappa and appellant No.1 on the issue of way.

[2024] 4 S.C.R. 333

Subhash @ Subanna & Ors. v.

State of Karnataka Ministry of Home Affairs

15. Now, to establish the death of Mahadevappa being a homicidal one,

the prosecution mainly draws support from the testimony of P.W.12

Dr. Balachandra Joshi who in his testimony before the Trial Court

states that he was working as Senior specialist since June, 2006 in

Government Hospital, Gulbarga. On 19.02.2009 he had conducted

post mortem on the dead body of Mahadevappa in between 12.30

p.m., to 2.00 p.m., and he noticed the following external injuries:

1. “Cut Lacerated wound on the forehead between the

eye brows measuring 6 x 2 x bone deep underlying

major bones fractured.

2. Lacerated wound on the face left side at the angle

of the mouth, margins irregular underlying upper jaw

bone fracture and loosening of teeths left side cheek

bone also fractured.

3. Cut lacerated wound on chin measuring 5 x 3 cm

x bone deep, evidence of bleeding was present,

underlying mandible bone was fractured.

4. Cut lacerated wound on the frontal region of the scalp

and forehead in the middle measuring 10 x 3 cm x

bone deep clot formation present.

5. Cut lacerated wound scalp on left side frontal region

measuring 10 cm x 4 cm x bone deep clot formation

present.

6. Cut lacerated wound on scalp on the top slightly to

the right side 12 cm x 4 cm x bone deep, evidence

of haemorrhage or bleeding present clot formation

present.

7. Punctual wound on the right side of leg below the

right knee measuring 6 x 5 x 3 cm underlying leg

bone fracture.

8. Fracture of 3rd, 4th, 5th ribs on the anterior side on

right side of chest wall. All the above injuries are

ante mortem in nature.”

16. He further states that, in his opinion cause of death is shock and

haemorrhage to the brain due to injury and multiple fracture injuries.

334 [2024] 4 S.C.R.

Digital Supreme Court Reports

17. Nothing could be elicited in his cross-examination and P.W.12 Dr

Balachandra Joshi stood firm on the aspect of the homicidal death

of Mahadevappa.

18. As stated above, even the appellants are not seriously disputing

the homicidal death of Mahadevappa. Insofar as their presence and

active role played by them is concerned, P.W.21 Sangeeta provides

all the necessary details in her testimony about the morning incident

i.e., prequel and about the actual incident which took place in the

evening. Though she was subjected to a detailed cross-examination,

her version remains to be unshaken and appears to be a truthful

version of the incident.

19. Similarly, P.W.19 Smt. Mallamma, who is the daughter of the

deceased Mahadevappa (elder sister of Sangeeta), P.W.22

Sharanappa (s/o Mahadevappa and brother of Sangeeta), P.W.23

Hanumanth (brother of Sangeeta, Mallamma and Sharanappa), also

supported the case of prosecution on the aspect of the presence

and active role played by the appellants causing the homicidal

death of Mahadevappa.

20. P.W.29 – Dr. Basawaswamy, supported the case of the prosecution

on the aspect of Sharanappa and Sangeeta receiving the injuries.

21. Dr. Basawaswamy in his testimony states that on 18.02.2009 he

examined Sharanappa s/o Mahadevappa who was injured. He came

to the hospital with a history of assault and on his examination Dr.

Basawswamy noticed the following injuries:

1. “2 x 1 cm incised wound over the dorsal aspect of right

little finger bleeding present, margins are clean cut.

2. Swelling present over the dorsa aspect of the right

hand.

3. Abrasion over the dorsal aspect of right forearm size

3 x 3 cm.

Taken X ray of right hand, crack fracture of 5th

metacarpal bone.

Wound No.2 is pre4vious in nature, other wounds

are simple in nature might have been cause by

sharp and blunt object. Age of the injury about less

than 4 hours.”

[2024] 4 S.C.R. 335

Subhash @ Subanna & Ors. v.

State of Karnataka Ministry of Home Affairs

22. Similarly, on the very same day, he examined another injured by

name Sangeeta D/o Mahadevapa and noticed the following injuries:

1. “Tenderness present over the left elbow.

2. Contusion over the posterior aspect of lower 1/3rd of

left arm measuring 3 x 2 cm.

3. Tenderness present over the left palm.

4. Tenderness present over the posterior aspect of left

shoulder.

23. Thus, version of Dr. Basawaswamy supports the case of the

prosecution on the aspects i.e., the presence of the prosecution

witnesses Sharanappa and Sangeeta on the spot and their attempt

to interfere to save their father Mahadevappa from the attack of the

accused/appellants, and receiving injuries in that process.

24. Now, although the learned counsel for the appellants vehemently

submitted before us that the act of the appellants was in exercise of

the right of private defence and as such, offence under Section 302

of Indian Penal code is not attracted against them, we are, however,

unable to accept this submission on appreciation of the evidence.

25. P.W.21 the star witness of the prosecution i.e., Kumari Sangeeta – the

complainant and injured eyewitness, clearly states about the incident

(prequel) which took place in the morning i.e., a quarrel between

herself and accused No.2 initially and then abuses by accused

Nos.1 and 3 to her. Then she states that on return of her father

Mahadevappa to their home in the evening, she apprised him about

the morning incident, after which Mahadevappa then proceeded to

house of the accused to make inquiry about the incident and that he

was immediately followed by her and her younger brother after which

she speaks about the role played by each of the accused–appellants.

26. She states that appellant No.1 thrashed her father with stick on his

head, appellant No.2 assaulted her father with chopper (koita) on his

head and forehead, then accused No.4 threw a stone on his right

knee and he picked up another stone and punched it on the mouth

of her father. Her mother Shobhavati and her brothers also stated

about the active role played by the accused–appellants.

27. P.W.25 Shivasharanappa though he had not witnessed the evening

incident, but he stated about the morning incident i.e., the quarrel 

336 [2024] 4 S.C.R.

Digital Supreme Court Reports

between the complainant and accused on account of blocking the

way.

28. As stated above, on careful scrutiny of the version of the witnesses,

it clearly shows that though it was the submission of the counsel for

the appellants that the deceased himself went to the house of the

accused and picked up a quarrel with the accused persons upon

provocation by the deceased, the appellants exercised their right

of private defence, yet on the assessment of the evidence of the

prosecution, we were unable to find any such provocation by the

deceased Mahadevappa.

29. The evidence clearly show that Mahadevappa was alone, he went

to the house of appellants to make an inquiry, but he had not

entered in his house and on the contrary, accused No.1 Subhash

s/o Shivaray Natikar thrashed the deceased using stick on the head

of Mahadevappa. Accused No. 2 – Dattatrey s/o Subhash Natikar

thrashed the head of Mahadevappa using chopper. Using a dangerous

weapon like chopper (koita), he assaulted Mahadevappa on his

head and forehead. As if this was not sufficient enough, accused

No.4 –Digambar threw a stone on the right knee of Mahadevappa

and then picking up another stone hit it on the face of deceased.

30. The prosecution evidence further reveals that neither Sharanappa

nor Sangeeta were carrying any weapon. Even though the evidence

further reveals that there was a verbal exchange, but there is nothing

to show that this verbal exchange was in the form of a provocation

by the deceased to the appellants.

31. Though the learned counsel for the appellants raised this ground

before this Court, no such ground is raised either at the time of

examination of the witnesses or even in 313 statements of the

appellants, i.e. at the trial stage.

32. The learned counsel for the appellants also made an attempt to submit

before us that the prosecution failed to show that the appellants were

carrying any intention to lay an assault on the deceased Mahadevappa

as Mahadevappa himself went to the house of appellants.

33. We are unable to accept even this submission. The evidence clearly

shows that there was a dispute on account of the way on 18.02.2009

leading to quarrel between P.W.21-Sangeeta and accused No.2

initially and then accused No.1 and 3 abused Sangeeta. Mahadevappa 

[2024] 4 S.C.R. 337

Subhash @ Subanna & Ors. v.

State of Karnataka Ministry of Home Affairs

proceeded to the house of accused persons for making an enquiry,

as he was appraised by Sangeeta when he returned to their home.

The evidence also shows that accused no.1 was armed with stick,

accused no.2 was armed with chopper and accused no.4 picked up

the stones lying on the spot.

34. P.W.22 Sharanappa clearly states in his deposition before the Court

that the appellant no.2 who was armed with chopper threatened his

father by uttering the words “I shall finish you” and then assaulted

his father with the chopper. Thus, the evidence of these injured

eyewitnesses clearly shows that the intention of the accused person

was to do away with Mahadevappa. It may not be out of place to

state here that the High Court while considering the submission on

this aspect of exercising their right of private defence referred to the

judgement in the case of Darshan Singh v. State of Punjab and

Another1 relied on by the learned counsel for the appellant. The

apex Court in this judgment observed in para 33 as follows:

“The basic principle underlying the doctrine of right of private

defence is that when an individual or his property is faced

with a danger and immediate aid from the State machinery

is not readily available, that individual is entitled to protect

himself and his property. The right of private defence is

available only to one who is suddenly confronted with

the necessity of averting an impending anger not of selfcreation. That being so, the necessary corollary is that the

violence which the citizen defending himself or his property

is entitled to use must not be unduly disproportionate to the

injury which is sought to be averted or which is reasonably

apprehended and should not exceed its legitimate purpose.”

Now, if this principle is applied and the facts of the present case are

appreciated, it is clear that the victim Mahadevappa was unarmed,

whereas the accused persons who were armed led a brutal attack

on the victim Mahadevappa by stick, by koita and stone.

35. The learned advocate for the State was justified in placing reliance

on the judgment of this Court in the matter of Virsa Singh v. State

of Punjab.2

 The relevant paras are as follows:

1 [2010] 1 SCR 642 : AIR 2010 SC 1212

2 [1958] 1 SCR 1495 : AIR 1958 SC 465

338 [2024] 4 S.C.R.

Digital Supreme Court Reports

"13. In considering whether the intention was to inflict

the injury found to have been inflicted, the enquiry

necessarily proceeds on broad lines as, for example,

whether there was an intention to strike at a vital

or a dangerous spot, and whether with sufficient

force to cause the kind of injury found to have been

inflicted. It is, or course, not necessary to enquire

into every last detail as, for instance, whether the

prisoner intended to have the bowels fall out, or

whether he intended to penetrate the liver or the

kidneys or the heart. Otherwise, a man who has no

knowledge of anatomy could never be convicted, for,

if he does not know that there is a heart or a kidney

or bowels, he cannot be said to have intended to

injure them. Of course, that is not the kind of enquiry.

It is broad-based and simple and based on common

sense: the kind of enquiry that “twelve good men

and true” could readily appreciate and understand.

14. To put it shortly, the prosecution must prove the

following facts before it can bring a case under

Section 300 “thirdly”.

15. First, it must establish, quite objectively, that a bodily

injury is present.

16. Secondly, the nature of the injury must be proved;

These are purely objective investigations.

17. Thirdly, it must be proved that there was an intention

to inflict that particular bodily injury, that is to say, that

it was not accidental or unintentional, or that some

other kind of injury was intended.

18. Once these three elements are proved to be present,

the enquiry proceeds further and.

19. Fourthly, it must be proved that the injury of the type

just described made up of the three elements set

out above is sufficient to cause death in the ordinary

course of nature. This part of the enquiry is purely

objective and inferential and has nothing to do with

the intention of the offender.

[2024] 4 S.C.R. 339

Subhash @ Subanna & Ors. v.

State of Karnataka Ministry of Home Affairs

20. Once these four elements are established by the

prosecution (and, of course, the burden is on the

prosecution throughout) the offence is murder under

Section 300 “thirdly”. It does not matter that there was

no intention to cause death. It does not matter that

there was no intention even to cause an injury of a

kind that is sufficient to cause death in the ordinary

course of nature (not that there is any real distinction

between the two). It does not even mater that there is

no knowledge that an act of that kind will be likely to

cause death. Once the intention to cause the bodily

injury actually found to be present is proved, the rest

of the enquiry is purely objective and the only question

is whether, as a matter of purely objective inference,

the injury is sufficient in the ordinary course of nature

to cause death. No one has a licence to run around

inflicting injuries that are sufficient to cause death

in the ordinary course of nature and claim that they

are not guilty of murder. If they inflict injuries of that

kind, they must face the consequences: and they

can only escape if it can be shown, or reasonably

deduced, that the injury was accidental or otherwise

unintentional (emphasis supplied).”

36. Accordingly, considering all the aspects, we are of the opinion that

the High Court of Karnataka committed no error in upholding and

confirming the judgment and order of Trial Court/Sessions Court, we

see no ground to interfere, the appeal thus fails and is dismissed.

37. The order dated 31.07.2018 of this Court by which bail was granted

to the appellants is hereby recalled. The appellants are directed to

surrender before the Trial Court within a period of four weeks from

today.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeal dismissed.

Evidence – Burden of proof – Discharge of, by the accused, when: [2024] 4 S.C.R. 323 Bhupatbhai Bachubhai Chavda & Anr. v. State of Gujarat Held: Unless, under the relevant penal statute, there is a negative burden put on the accused or there is a reverse onus clause, the accused is not required to discharge any burden – In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused – In the absence of the statutory provisions the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt [Para 7]

* Author

[2024] 4 S.C.R. 322 : 2024 INSC 295

Bhupatbhai Bachubhai Chavda & Anr.

v.

State of Gujarat

(Criminal Appeal No. 334 of 2019)

10 April 2024

[Abhay S. Oka* and Ujjal Bhuyan, JJ.]

Issue for Consideration

High Court, if justified in overturning the order of acquittal.

Headnotes

Code of Criminal Procedure, 1973 – s. 378 – Appeal against

acquittal – Interference by the appellate court, when:

Held: Appellate Court can interfere with the order of acquittal only

if it is satisfied after re-appreciating the evidence that the only

possible conclusion was that the guilt of the accused had been

established beyond a reasonable doubt – Appellate Court cannot

overturn order of acquittal only on the ground that another view is

possible – Judgment of acquittal must be found to be perverse –

Unless the Appellate Court records such a finding, no interference

can be made with the order of acquittal – On facts, the High Court

converted the acquittal of the appellants into conviction for offence

punishable u/ss. 302/34 and s. 323 – High Court did not avert, if

the view taken by the trial court was a plausible view that could

have been taken based on evidence on record – High Court ignored

that an order of acquittal further strengthens the presumption of

innocence of the accused – High Court’s finding on the burden of

proof is completely erroneous – Finding of the trial court that the

evidence of the prosecution witness did not inspire confidence is

a possible finding which could have been recorded on the basis

of the evidence on record – No reason for the High Court to

overturn the order of acquittal when the findings of the trial court

were possible findings that could be arrived at after re-appreciating

evidence – Thus, the order of acquittal of the appellants upheld –

Judgment and order of the High Court set aside, and that of the

trial court restored – Penal Code, 1860 – ss. 302 rw 34 and s.

323. [Paras 6, 7, 10, 11]

Evidence – Burden of proof – Discharge of, by the accused,

when:

[2024] 4 S.C.R. 323

Bhupatbhai Bachubhai Chavda & Anr. v. State of Gujarat

Held: Unless, under the relevant penal statute, there is a negative

burden put on the accused or there is a reverse onus clause,

the accused is not required to discharge any burden – In a case

where there is a statutory presumption, after the prosecution

discharges initial burden, the burden of rebuttal may shift on the

accused – In the absence of the statutory provisions the burden

was on the prosecution to prove the guilt of the accused beyond

a reasonable doubt [Para 7]

List of Acts

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

List of Keywords

Appeal against acquittal; Re-appreciate the evidence; Plausible

view; Appellate Court; Burden of proof; Negative burden; Reverse

onus clause; Statutory presumption; Discharge initial burden.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 334

of 2019

From the Judgment and Order dated 14.12.2018 of the High Court

of Gujarat at Ahmedabad in CRLA No. 838 of 1997

Appearances for Parties

D.N. Ray, Sr. Adv., Dillip Kumar Nayak, Ms. Disha Ray, Mrs. Sumita

Ray, Advs. for the Appellants.

Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Abhay S. Oka, J.

FACTUAL ASPECTS

1. The appellants, who are father and son, were prosecuted for the

offence punishable under Section 302, read with Section 34 of the

Indian Penal Code (IPC). The incident occurred on 17th September

1996. The allegation is that the appellants assaulted one Punjabhai

(the deceased) with pipes and sticks. The deceased suffered a 

324 [2024] 4 S.C.R.

Digital Supreme Court Reports

large number of injuries and ultimately succumbed to the injuries.

By judgment dated 5th July 1997, the Sessions Court acquitted

the appellants. Being aggrieved by the judgment of the Sessions

Court, the respondent - State of Gujarat preferred an appeal against

acquittal before the High Court. By the impugned judgment dated

14th December 2018, the High Court interfered and converted the

acquittal of the appellants into a conviction for the offence punishable

under Section 302, read with Section 34 and Section 323 of the IPC.

By order dated 6th January 2020, this Court directed that the present

appeal be listed for hearing. By order dated 18th May 2021, the

application for suspension of sentence and grant of bail by the first

appellant was rejected by this Court. However, this Court continued

the order dated 21st January 2019 by which exemption was granted

to the second appellant from surrendering.

2. The prosecution case in brief is that PW-1 Danabhai is the brother

of the deceased. He had two brothers. The deceased was engaged

in the business of diamond polishing. At about 9.45 pm on 17th

September 1996, when PW-1 was sitting in his pan-bidi shop,

one Vajsurbhai came to him by motorcycle and told him that the

appellants had assaulted the deceased. On hearing this news, PW-1

went towards village Jhanjhmer. He met his uncle Ramabhai on the

outskirts of the village, who was taking the deceased to the hospital

by a tempo. According to the prosecution case, Karshanbhai (PW-4),

Dayabhai, Jivabhai and other villagers were sitting in the tempo. The

deceased was taken to the clinic of Dr. Goti at Dhola village. As per

his advice, the deceased was immediately shifted to Bhavnagar in

a private hospital. The deceased succumbed to the injuries in the

early morning of 18th September 1996.

3. The Trial Court disbelieved the testimony of PW-4 Karshanbhai for

various reasons. In the impugned judgment, the High Court noted

that though, according to the case of PW-4, he received injuries on

17th September 1996 at the hands of the accused, Dr Jagdishbhai

(PW-5) deposed that PW-4 informed him that he suffered injuries on

18th September 1996. The High Court, in the impugned judgment,

held that in his police statement, PW-4, had correctly stated that he

was injured on 18th September 1996. Therefore, the statement he

gave before the Court and the statement given by the doctor were

meaningless. The High Court held that although the number of

persons who witnessed the incident have not been examined, the 

[2024] 4 S.C.R. 325

Bhupatbhai Bachubhai Chavda & Anr. v. State of Gujarat

appellants failed to adduce any evidence to falsify the prosecution’s

version. By the impugned judgment, after overturning the acquittal

of the appellants, the High Court sentenced them to undergo life

imprisonment.

SUBMISSIONS

4. The learned senior counsel appearing for the appellants pointed

out that the High Court, while overturning the order of acquittal,

had relied upon the police statement of PW-4 and had erroneously

put the burden on the appellants to adduce evidence to show

their innocence. He submitted that the entire approach of the High

Court while dealing with an appeal against acquittal, is completely

erroneous. He submitted that there is no finding recorded by the High

Court that the only possible view which could be taken based on the

evidence was that the guilt of the appellants had been proved. The

learned senior counsel submitted that the High Court had erred in

overturning the order of acquittal.

5. The learned counsel appearing for the State vehemently submitted

that in an appeal against acquittal, the High Court was duty-bound

to reappreciate the evidence, and after finding that evidence of PW4, an eye-witness, completely inspires confidence, the High Court

rightly interfered with the order of acquittal.

OUR VIEW

6. It is true that while deciding an appeal against acquittal, the Appellate

Court has to reappreciate the evidence. After re-appreciating the

evidence, the first question that needs to be answered by the Appellate

Court is whether the view taken by the Trial Court was a plausible view

that could have been taken based on evidence on record. Perusal of

the impugned judgment of the High Court shows that this question

has not been adverted to. Appellate Court can interfere with the order

of acquittal only if it is satisfied after reappreciating the evidence that

the only possible conclusion was that the guilt of the accused had

been established beyond a reasonable doubt. The Appellate Court

cannot overturn order of acquittal only on the ground that another

view is possible. In other words, the judgment of acquittal must be

found to be perverse. Unless the Appellate Court records such a

finding, no interference can be made with the order of acquittal.

The High Court has ignored the well-settled principle that an order

of acquittal further strengthens the presumption of innocence of the 

326 [2024] 4 S.C.R.

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accused. After having perused the judgment, we find that the High

Court has not addressed itself on the main question.

7. The second error the High Court committed is found in paragraph 23

of the impugned judgment. The High Court has gone to the extent of

recording a finding that the appellants have failed to adduce evidence

in their support, failed to examine the defence witness and failed

to establish falsity of the prosecution’s version. This concept of the

burden of proof is entirely wrong. Unless, under the relevant penal

statute, there is a negative burden put on the accused or there is a

reverse onus clause, the accused is not required to discharge any

burden. In a case where there is a statutory presumption, after the

prosecution discharges initial burden, the burden of rebuttal may

shift on the accused. In the absence of the statutory provisions as

above, in this case, the burden was on the prosecution to prove the

guilt of the accused beyond a reasonable doubt. Therefore, the High

Court’s finding on the burden of proof is completely erroneous. It is

contrary to the law of the land.

8. We have carefully examined the evidence of the material prosecution

witnesses. PW-1 Danabhai stated that after he was informed in the

night around 9 O’clock about the assault on the deceased by one

Vajsurbhai, he proceeded by his bicycle. He stated that when he

reached Jhanjhmer, he found that his deceased brother was laid in

a tempo of Ramabhai. He stated about the presence of Arjanbhai

and Jivabhai. He stated that no one informed him about the incident

at that time. He thereafter described how the deceased was taken

to the hospital of Dr Goti and thereafter to a private hospital in

Bhavnagar. PW-1 deposed that PW-4 Karshanbhai went with him

to Bhavnagar, and in the hospital of Dr Rana, PW-4 informed PW-1

that the appellants had assaulted the deceased by using a stick. He

stated that though PW-4 informed him that he was present at the

time of the incident, he did not tell him about the assault on him by

the accused. Thus, PW-1 did not state that PW-4 was present when

he reached the place where he found that the deceased was laid in

a tempo, and according to his version, PW-4 came to Bhavnagar.

Though PW-4 stated that PW-1 came on a bicycle and came to Dhola

with them, the version of PW-1 is that PW-4 joined him at Bhavnagar.

This creates a doubt about the presence of PW-4 at the time of the

incident. Importantly, one Vajsurbhai, who informed PW-1 about the

assault on the deceased, has not been examined as a witness. 

[2024] 4 S.C.R. 327

Bhupatbhai Bachubhai Chavda & Anr. v. State of Gujarat

9. PW-4 admitted that there is an ongoing litigation about his family’s land

between the appellants and his family. PW-4 claimed that just before

the fatal blow was inflicted on the deceased, a blow was given to the

witness by pipe around 8 pm on the date of the incident. However,

PW-5 Dr Jagadishbhai stated that when he examined PW-4 on 19th

September 1996, the history given by PW-4 was to the effect that he

was assaulted by a pipe on 18th September 1996 at 8.00 pm. The

incident is of 17th September 1996. The High Court has completely

brushed aside this statement of PW-5 by observing that once the

police recorded statements of the Doctor and PW-4, the statements

of PW-4 and the Doctor before the Court became meaningless. As

is apparent from Section 162 of the Code of Criminal Procedure,

1973 (CrPC), statements recorded by police under Section 161 of

the CrPC cannot be used for any purpose except to contradict the

witness. The Trial Court gives several reasons for discarding the

testimony of PW-4. His prior enmity with the appellants and his

failure to report the incident to the police, notwithstanding available

opportunities, are also the factors considered by the Trial Court.

10. Therefore, after having perused the evidence of the material

prosecution witnesses, in our view, the finding of the Trial Court

that the evidence of PW-4 did not inspire confidence is a possible

finding which could have been recorded on the basis of the evidence

on record. There was no reason for the High Court to overturn the

order of acquittal when the findings of the Trial Court were possible

findings that could be arrived at after reappreciating evidence.

11. Therefore, the appeal must succeed. We set aside the judgment and

order dated 14th December 2018 of the High Court and set aside

the conviction of the appellants. The judgment and order dated 5th

July 1997 of the Trial Court is restored. The appeal is, accordingly,

allowed. The bail bonds of the appellant no.2 are cancelled. The

appellant no.1 shall be forthwith set at liberty unless he is required

to be detained in connection with any other case.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeal allowed.

Penal Code, 1860 – Criminal Conspiracy – Two or more person agrees to, cause to be done i) an Illegal act ii) an act which is not illegal by illegal means – No agreement except an agreement to commit an offence shall amount to Criminal conspiracy – Cheating – An act to cheat and thereby dishonestly induce the person so deceived to deliver any property and fraudulent or dishonest intention at the time of making the representation or promise.

* Author

[2024] 4 S.C.R. 308 : 2024 INSC 284

Vipin Sahni and Another

v.

Central Bureau of Investigation

(Criminal Appeal No. 1980 of 2024)

08 April 2024

[Aniruddha Bose and Sanjay Kumar*, JJ]

Issue for Consideration

Whether it is open for High Court to convert or treat a petition

filed under section 482 Cr.P.C., as one filed under section 397

Cr.P.C.

Headnotes

Code of Criminal Procedure, 1973 – ss.482 and 397 –

Special Judicial Magistrate while exercising the power given

under section 239 Cr.P.C. discharged the appellants – CBI

approached the High Court under section 482 Cr.P.C. –

High Court set aside the discharge order and directed the

learned Special Judicial Magistrate to proceed with the case

– Appellants preferred appeal against the said impugned

order – Order of the High court is set aside.

Held: When the specific remedy of revision under section 397

Cr.P.C. is available, it could not have been ignored – A petition

under section 482 Cr.P.C. cannot be filed as an alternative of

revision. [Para. 25]

Penal Code, 1860 – Criminal Conspiracy – Two or more person

agrees to, cause to be done i) an Illegal act ii) an act which is not

illegal by illegal means – No agreement except an agreement

to commit an offence shall amount to Criminal conspiracy –

Cheating – An act to cheat and thereby dishonestly induce the

person so deceived to deliver any property and fraudulent or

dishonest intention at the time of making the representation

or promise.

Held: The sine qua non to make out an offence under section

420 IPC is an act on part act to cheat and thereby dishonestly

induce the person so deceived to deliver any property and

fraudulent or dishonest intention at the time of making the

representation or promise and such culpable intention should 

[2024] 4 S.C.R. 309

Vipin Sahni and Another v. Central Bureau of Investigation

be there at the time of entering into the agreement – Ingredients

required to constitute an offence of cheating are (i) there

should be fraudulent or dishonest inducement of a person by

deceiving him; (ii) (a) the person so deceived should be induced

to deliver any property to any person, or to consent that any

person shall retain any property; or (b) the person so deceived

should be intentionally induced to do or omit to do anything

which he would not do or omit if he were not so deceived; and

(iii) in cases covered by (ii) (b), the act or omission should be

one which causes or is likely to cause damage or harm to the

person induced in body, mind, reputation or property. [Paras

9, 10, 19, 20 and 26]

Inherent power of the court – Can be exercised when there

is no remedy provided in the Code of Criminal Procedure for

redressal of the grievance.

Held: As per the Article 131 in the Schedule to the Limitation

Act, 1963, the limitation period for filing a criminal revision under

Section 397 Cr.P.C. is 90 days – However, there is no limitation

prescribed for invocation of the inherent powers of the High Court

under Section 482 Cr.P.C – It is well settled that the inherent

power of the Court can ordinarily be exercised when there is no

express provision in the Code under which order impugned can

be challenged – When a revision is lawfully instituted before the

High Court but the same is thereafter found to be not maintainable

on some other ground, it would be open to the High Court to

treat the same as a petition filed under Section 482 Cr.P.C in

order to do justice in that case – However, the reverse analogy

may not apply in all cases and it would not be open to the High

Court to blindly convert or treat a petition filed under Section 482

Cr.P.C as one filed under Section 397 Cr.P.C., without reference

to other issues, including limitation. [Paras 23 and 25]

Case Law Cited

Ram Jas v. State of U.P. [1971] 2 SCR 178 : (1970) 2

SCC 740; V.P. Shrivastava v. Indian Explosives Limited

and others [2010] 11 SCR 788 : (2010) 10 SCC 361

– Followed.

Mohit alias Sonu and another v. State of U.P. and another

[2013] 7 SCR 86 : (2013) 7 SCC 789 – Relied on.

310 [2024] 4 S.C.R.

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List of Acts

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

Approval Process 2006.

List of Keywords

Inherent Power of the Court, Revision, Criminal Conspiracy,

Cheating, Discharge.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1980

of 2024

From the Judgment and Order dated 20.01.2023 of the High Court

of Judicature at Allahabad in A482 No. 11426 of 2021

Appearances for Parties

Mukul Rohatgi, Jaideep Gupta, Sr. Adv., Samir Rohtagi, Ajay Singh,

Ms. Alka Sinha, Anuvrat Sharma, Advs. for the Appellants.

Vikramjeet Banerjee, A.S.G., Mukesh Kumar Maroria, Padmesh

Mishra, Arkaj Kumar, Anukalp Jain, Ms. Bani Dikshit, Merusagar

Samantaray, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Sanjay Kumar, J.

1. Leave granted.

2. Exercising power under Section 239 Cr.P.C, the learned Special

Judicial Magistrate, CBI Court, Ghaziabad, discharged the appellants

herein of a charge under Sections 420 and 120B IPC, vide order

dated 31.08.2019 in Case No. 456 of 2012 arising out of RC-219

2011 (E) 0016 registered on the file of Police Station CBI, EO-1, New

Delhi. Aggrieved thereby, the Central Bureau of Investigation (for

short, ‘CBI’) approached the High Court of Judicature at Allahabad,

under Section 482 Cr.P.C, by way of Application U/S 482 No. 11426

of 2021. By order dated 20.01.2023 passed therein, the High Court

set aside the discharge order and directed the learned Magistrate

to proceed with the case against the appellants. Assailing the said

order, they are before this Court.

[2024] 4 S.C.R. 311

Vipin Sahni and Another v. Central Bureau of Investigation

3. The appellants had established Sunshine Educational and

Development Society, NOIDA, Uttar Pradesh, and registered it

under the Societies Registration Act in the year 2004. The aims and

objectives of this Society, inter alia, included propagation of technical

education. Appellant No. 1 was the Chairman of the said Society

while his wife, viz., appellant No. 2, was its Secretary. In September,

2006, the Society acquired 4.90 acres of land in Greater NOIDA,

Uttar Pradesh, on a 90-year lease from Greater Noida Industrial

Development Authority, Gautambudh Nagar, Uttar Pradesh, for

setting up educational institutions. The Society filed application dated

22.01.2007 seeking approval of the All India Council for Technical

Education (AICTE) to establish ‘Business School of Delhi’, offering a

Post-Graduate Diploma Course in Business Management (PGDM),

in an extent of one acre out of the leased land. In the application,

the Society disclosed that a loan of ₹5.75 Crore had been availed

by it from Corporation Bank and that the outstanding loan stood at

above ₹3 Crore. It also disclosed, in response to clause 6(v), that a

loan/mortgage had been raised against the land, by ticking the ‘Yes’

box. However, in the tabular form in the first page, against the query

– ‘Mortgaged with Bank - Yes/No’, the answer was stated as ‘No’.

There was, thus, an apparent contradiction in the application itself.

In any event, approval was accorded by the AICTE on 17.08.2007

to start the ‘Business School of Delhi’.

4. Thereafter, the Society submitted another application to the AICTE

on 27.10.2007 seeking to establish ‘Business School for Women’,

offering PGDM course. A day later, on 28.10.2007, the Society filed

yet another application seeking approval from the AICTE to start a

third institute, named ‘International Business School of Delhi’. The

first and third applications were moved on behalf of the Society by

appellant No. 1, being its Chairman, while the second application was

filed by appellant No. 2, as its Secretary. In the two later applications,

the Society failed to mention that the leased land was mortgaged

but it disclosed the fact that it had already been granted approval in

the year 2007 to operate another institute from the same premises.

By proceedings dated 29.05.2008, the AICTE granted approval for

starting the ‘Business School for Women’ in an extent of 0.8 acres

out of the said land. On 19.06.2008, the AICTE accorded approval

to commence the ‘International Business School of Delhi’ in the

leased land.

312 [2024] 4 S.C.R.

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5. While so, it appears that an anonymous complaint was made to the

Chief Vigilance Commissioner alleging that officials of the AICTE

had shown undue favour to the Society. On the strength thereof,

the Chief Vigilance Commissioner referred the matter to the CBI for

investigation. In the first instance, the Regional Officer of the CBI at

Kanpur addressed letter dated 24.07.2011 to the Station-in-charge,

Police Station Greater NOIDA, to register a case for investigation but

the District Police of Gautambudh Nagar, Uttar Pradesh, opined that

the complaint did not justify registering of a FIR and/or proceeding

with investigation as no cognizable offence was made out.

6. However, on 30.11.2011, Case Crime No. 219 2011 (E) 0016 was

registered on the file of PS CBI, EO-1, New Delhi, under Sections

420 and 120B IPC along with Section 13(2) read with Section 13(1)

(d) of the Prevention of Corruption Act, 1988. This FIR was registered

against the appellants and unnamed officials of the AICTE, alleging

that the appellants had obtained approval by deceitful means from

the AICTE, in violation of Section 4.2(iii) of the AICTE Approval

Process 2006. As per this provision, the land approved for starting an

educational institution ought not to be encumbered. After completion

of the investigation, Charge Sheet No. 11 of 2012 was filed by the

CBI for offences under Sections 420 and 120B IPC, naming only

the appellants as the accused. No official of the AICTE was charged

with criminality in granting approval to the Society’s institutions.

7. Aggrieved by their arraignment, the appellants approached the High

Court at Allahabad under Section 482 Cr.P.C, vide Application U/S

482 No. 37398 of 2012, seeking quashing of the criminal proceedings

against them. By order dated 14.02.2013, the High Court accepted

their plea and quashed the said proceedings. However, upon the

CBI approaching this Court in Criminal Appeal No. 239 of 2015, by

order dated 05.02.2018 passed therein, this Court set aside the

order dated 14.02.2013 but made it clear that the Trial Court would

be at liberty to go into the merits of the issue raised at the stage

of framing of charges. Thereafter, on 02.07.2018, the Trial Court

granted bail to the appellants.

8. On 25.09.2018, the appellants moved an application for discharge

before the learned Special Judicial Magistrate, CBI Court, Ghaziabad,

but the learned Magistrate rejected their plea by order dated

15.02.2019 and directed the matter to be listed for framing of charges. 

[2024] 4 S.C.R. 313

Vipin Sahni and Another v. Central Bureau of Investigation

The appellants, thereupon, preferred Criminal Revision No. 101 of

2019 before the learned Additional Sessions Judge, Ghaziabad,

under Section 397 Cr.P.C. The revision was allowed by the learned

Additional Sessions Judge, vide order dated 29.05.2019, whereby the

order passed by the learned Magistrate was set aside and the matter

was remanded for hearing afresh, in the light of the observations

made in the revisional order. In consequence, the learned Magistrate

reheard the case and passed order dated 31.08.2019, discharging

the appellants from the alleged offence under Sections 420 and 120B

IPC. Nearly one and a half years after the passing of this discharge

order, i.e., on 21.02.2021, the CBI filed a petition under Section 482

Cr.P.C assailing it before the High Court at Allahabad. The petition

was taken on file as Application U/S 482 No. 11426 of 2021 and the

High Court allowed the same by way of the impugned order, leading

to the present appeal.

9. Before we proceed to examine the case on merits, we may first take

note of relevant legal provisions. Section 415 IPC defines ‘Cheating’

and it reads thus: -

‘415. Cheating.-

Whoever, by deceiving any person, fraudulently or

dishonestly induces the person so deceived to deliver any

property to any person, or to consent that any person shall

retain any property, or intentionally induces the person so

deceived to do or omit to do anything which he would not

do or omit if he were not so deceived, and which act or

omission causes or is likely to cause damage or harm to

that person in body, mind, reputation or property, is said

to “cheat”.

Explanation.- A dishonest concealment of facts is a

deception within the meaning of this section.’

Section 420 IPC, the provision we are concerned with presently,

reads as under: -

‘420. Cheating and dishonestly inducing delivery of

property.-

Whoever cheats and thereby dishonestly induces the

person deceived to deliver any property to any person, 

314 [2024] 4 S.C.R.

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or to make, alter or destroy the whole or any part of a

valuable security, or anything which is signed or sealed,

and which is capable of being converted into a valuable

security, shall be punished with imprisonment of either

description for a term which may extend to seven years,

and shall also be liable to fine.’

Sections 120A IPC and 120B IPC read thus: -

‘120A. Definition of criminal conspiracy.-

When two or more persons agree to do, or cause to be

done,

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such

an agreement

is designated a criminal conspiracy:

Provided that no agreement except an agreement to

commit an offence shall amount to a criminal conspiracy

unless some act besides the agreement is done by one

or more parties to such agreement in pursuance thereof.’

‘120B. Punishment of criminal conspiracy.-

(1) Whoever is a party to a criminal conspiracy to commit

an offence punishable with death, [imprisonment

for life] or rigorous imprisonment for a term of two

years or upwards, shall, where no express provision

is made in this Code for the punishment of such a

conspiracy, be punished in the same manner as if

he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than

a criminal conspiracy to commit an offence punishable

as aforesaid shall be punished with imprisonment of

either description for a term not exceeding six months,

or with fine or with both.]’

10. The sine qua non to make out an offence under Section 420 IPC,

insofar as the present case is concerned, is an act on the part of

the appellants to ‘cheat and thereby dishonestly induce the person

so deceived, viz., the AICTE, to deliver any property’. Therefore, the 

[2024] 4 S.C.R. 315

Vipin Sahni and Another v. Central Bureau of Investigation

appellants, while applying for and on behalf of the Society, should

have either suppressed material information or projected incorrect

information so as to induce the AICTE, by such dishonest means, to

grant approval for its educational institutions. Further, as no official

of the AICTE has been implicated in the offence, as per the charge

sheet, the alleged ‘criminal conspiracy’ under Section 120B IPC

would also be attributable to the appellants only.

11. Viewed in this light, we may note that the first application dated

22.01.2007 submitted by appellant No. 1 for starting ‘Business

School of Delhi’ clearly mentioned the fact that a part of the leased

land admeasuring about 5 acres was to be used for setting up this

institution and that a term loan of ₹5.75 crore had been raised from

the Corporation Bank. The repayable outstanding loan was also

shown as above ₹3 crore. Clause 6 of the application dealt with

‘Land’ and it was stated thereunder that the government’s leased

land of about 5 acres was intended to be used for establishing the

college. Clause 6(v) of the application and the Society’s response

thereto are extracted hereunder.

'(v) Any loans/mortgage raised against the titles of the

land

Yes  No’

12. Further, as already noted, the AICTE deemed it fit to grant approval

on 17.08.2007 to start this institution. This was despite the AICTE’s

‘Approval Process 2006’ providing that the land should have been

registered in the name of the applicant’s society/trust on or before

the date of submission of the proposal, free from any encumbrances.

However, no official of the AICTE has been implicated in any

wrongdoing.

13. Coming to the Society’s second application for the ‘Business School

for Women’, the same extent of 5 acres was shown against clause 6

but there was non-disclosure of the mortgage of the land to secure

the outstanding bank loan. Under clause 6(v), the society failed to

state that a loan/mortgage had been raised against the title of the

land and tick-marked ‘No’ instead of ‘Yes’. Similarly, the application

for starting the ‘International Business School of Delhi’ also mentioned

the same extent of 5 acres of land but again, clause 6(v) contained

incorrect information as against the question whether any loan/

316 [2024] 4 S.C.R.

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mortgage had been raised against the title of the land. The word

‘No’ was tick-marked instead of ‘Yes’.

14. These are the actions which formed the foundation for the CBI’s case

against the appellants. As already stated hereinbefore, it was not the

AICTE that claimed that it was deceived and dishonestly induced to

grant approval owing to suppression of material information by the

appellants acting on behalf of the Society. It was a third party who

chose to remain anonymous that initiated the investigation. Further,

by not implicating any official of the AICTE in the charge sheet and

by dropping the provisions of the Prevention of Corruption Act, 1988,

the CBI found that the AICTE’s officials were not complicit at all and

they were given a clean chit.

15. At this stage we may note that, though the appellants were initially

successful in getting the proceedings quashed by the High Court,

this Court reversed the said order but left it open to the Trial Court

to examine the issue raised, on merits, at the time of framing of

charges. It is pursuant to the liberty granted by this Court that the

learned Special Judicial Magistrate, CBI Court, chose to exercise

power under Section 239 Cr.P.C and discharged the appellants. The

validity of that exercise was called in question before the High Court,

which ultimately held against the appellants.

16. Significantly, the High Court was not inclined to accept the preliminary

objection raised by the appellants to the effect that the CBI ought to

have filed a revision under Section 397 Cr.P.C against the discharge

order and could not maintain a petition under Section 482 Cr.P.C.

In this regard, the High Court observed that it could always treat a

petition filed under Section 482 Cr.P.C as a revision under Section

397 Cr.P.C and, therefore, the appellants’ objection had no substance.

On merits, the High Court opined that the appellants had deliberately

withheld relevant information knowing fully well that if the land was

encumbered in any manner, approval for setting up the educational

institutions there would be declined. Holding so, the High Court set

aside the discharge order.

17. We are, however, of the considered opinion that the finding of the High

Court as to deliberate withholding of information by the appellants

cannot be accepted on the given facts. It is a matter of record that

the first application dated 22.01.2007 filed by appellant No. 1 on

behalf of the Society disclosed that a bank loan was still outstanding 

[2024] 4 S.C.R. 317

Vipin Sahni and Another v. Central Bureau of Investigation

and that the subject land of nearly 5 acres had been mortgaged to

secure the loan. This was followed by scrutiny and verification by the

officials of the AICTE, including a spot inspection, following which,

approval for starting the ‘Business School of Delhi’ was accorded

on 17.08.2007. No wrongdoing has been attributed to the officials

of the AICTE in that regard. It was only the later application dated

27.10.2007 for the ‘Business School for Women’ and the application

dated 28.10.2007 for the ‘International Business School of Delhi’ that

did not state correct information with regard to the outstanding bank

loan and the mortgage of the land in connection therewith. However,

all three applications mentioned the extent of nearly 5 acres and the

AICTE could not be said to be in ignorance of the fact that the said

land was under an encumbrance at the time the applications were

made. Notably, both the later applications mentioned the fact that

an institution was already granted approval in 2007 to operate from

the same premises. This was obviously in reference to the ‘Business

School of Delhi’ and the application for the same did disclose the

subsistence of the loan and the encumbrance on the land.

18. That apart, it was not even the case of the AICTE that it was under

any illusions, whereby it was dishonestly induced to grant approval

for establishment of the colleges in question. The only party who

can speak of being ‘dishonestly induced to do or not do something’

is that party itself and when the AICTE made no such complaint,

it was not for others to insinuate that the AICTE was dishonestly

induced to do something.

19. In Ram Jas v. State of U.P.1

, the ingredients required to constitute

an offence of cheating were succinctly summed up thus: -

"(i) there should be fraudulent or dishonest inducement

of a person by deceiving him;

(ii) (a) the person so deceived should be induced to

deliver any property to any person, or to consent that

any person shall retain any property; or

(b) the person so deceived should be intentionally

induced to do or omit to do anything which he would

not do or omit if he were not so deceived; and

1 [1971] 2 SCR 178 : (1970) 2 SCC 740

318 [2024] 4 S.C.R.

Digital Supreme Court Reports

(iii) in cases covered by (ii) (b), the act or omission should

be one which causes or is likely to cause damage or

harm to the person induced in body, mind, reputation

or property.’

20. In V.P.Shrivastava vs. Indian Explosives Limited and others2

, this

Court observed that in order to constitute an offence of cheating,

it must be shown that the accused had a fraudulent or dishonest

intention at the time of making the representation or promise and

such a culpable intention should be there at the time of entering into

the agreement. On facts, it was found that the party alleged to have

been cheated was fully conscious of the situation at the time it decided

to enter into the contract and there was no dishonest inducement.

21. In the case on hand, there was disclosure of the fact that the subject

land was mortgaged to secure the bank loan but despite the same,

the AICTE granted approval for the ‘Business School of Delhi’ and it

never complained that it was under any misinformation in that regard.

Thus, the essential requisite to make out an offence of cheating is

lacking. Mere carelessness on the part of the appellants in filling up

the second and third applications and a part of the first application

also cannot be taken to be motivated by deliberate deception, on

the admitted factual position, so as to invite criminal charges.

22. Further, there is no evidence of the appellants consciously agreeing

or conspiring to deliberately furnish false information to the AICTE so

as to garner its approval for their colleges. As already noted, appellant

No.1 filed the first application, divulging the relevant details of the bank

loan and the mortgage over the leased land, but he failed to do so

in the third application filed by him. Appellant No.2 filed the second

application with the same non-disclosure but there is no evidence

whatsoever of the appellants resorting to deception in that regard

willfully and in connivance with each other. Therefore, the charge

under Section 120B IPC also does not withstand judicial scrutiny.

23. As regards the objection raised by the appellants as to the maintainability

of the CBI’s petition filed before the High Court under Section 482

Cr.P.C., we may note that, as per Article 131 in the Schedule to the

Limitation Act, 1963, the limitation period for filing a criminal revision

2 [2010] 11 SCR 788 : (2010) 10 SCC 361

[2024] 4 S.C.R. 319

Vipin Sahni and Another v. Central Bureau of Investigation

under Section 397 Cr.P.C, be it before the High Court or the Sessions

Court, is 90 days. However, there is no limitation prescribed for

invocation of the inherent powers of the High Court under Section 482

Cr.P.C. and it can be at any time. It is a matter of record that when

the learned Special Magistrate, CBI Court, dismissed the appellants’

discharge petition in the first instance, they had filed a revision before

the Sessions Court under Section 397 Cr.P.C. and the matter was

remanded for hearing afresh. However, the CBI did not choose to adopt

this course when the appellants’ discharge petition was allowed by the

learned Special Magistrate in the second round. Long after the expiry

of the limitation period of 90 days, the CBI filed a petition before the

High Court at Allahabad under Section 482 Cr.P.C. This was obviously

to get over the hurdle of the limitation for filing of a revision under

Section 397 Cr.P.C. In this regard, useful reference may be made to

the decision of this Court in Mohit alias Sonu and another vs. State

of U.P. and another3

, wherein it was observed thus:

‘28. So far as the inherent power of the High Court as

contained in Section 482 CrPC is concerned, the law

in this regard is set at rest by this Court in a catena of

decisions. However, we would like to reiterate that when

an order, not interlocutory in nature, can be assailed in

the High Court in revisional jurisdiction, then there should

be a bar in invoking the inherent jurisdiction of the High

Court. In other words, inherent power of the Court can be

exercised when there is no remedy provided in the Code of

Criminal Procedure for redressal of the grievance. It is well

settled that the inherent power of the Court can ordinarily

be exercised when there is no express provision in the

Code under which order impugned can be challenged.

29. Courts possess inherent power in other statute also like

the Code of Civil Procedure (CPC), Section 151 whereof

deals with such power. Section 151 CPC reads:

“151. Saving of inherent powers of court.—Nothing in

this Code shall be deemed to limit or otherwise affect the

inherent power of the court to make such orders as may

be necessary for the ends of justice or to prevent abuse

of the process of the court.”

3 [2013] 7 SCR. 86 : (2013) 7 SCC 789

320 [2024] 4 S.C.R.

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30. This Court in Padam Sen v. State of U.P. [AIR 1961

SC 218 : (1961) 1 Cri LJ 322] regarding inherent power

of the Court under Section 151 CPC observed: (AIR p.

219, para 8)

“8. … The inherent powers of the court are in addition to

the powers specifically conferred on the court by the Code.

They are complementary to those powers and therefore it

must be held that the Court is free to exercise them for the

purposes mentioned in Section 151 of the Code when the

exercise of those powers is not in any way in conflict with

what has been expressly provided in the Code or against

the intentions of the legislature. It is also well recognised

that the inherent power is not to be exercised in a manner

which will be contrary to or different from the procedure

expressly provided in the Code.”

31. In a Constitution Bench decision rendered in Manohar

Lal Chopra v. Seth Hiralal [AIR 1962 SC 527] , this Court

held that: (AIR p. 537, para 43)

“43. … The inherent jurisdiction of the court to make orders

ex debito justitiae is undoubtedly affirmed by Section 151 of

the Code, but [inherent] jurisdiction cannot be exercised so

as to nullify the provisions of the Code of Civil Procedure.

Where the Code of Civil Procedure deals expressly with a

particular matter, the provision should normally be regarded

as exhaustive.”

32. The intention of the legislature enacting the Code of

Criminal Procedure and the Code of Civil Procedure vis-à-vis

the law laid down by this Court it can safely be concluded that

when there is a specific remedy provided by way of appeal

or revision the inherent power under Section 482 CrPC or

Section 151 CPC cannot and should not be resorted to.’

24. In the light of the above edict, it was not open to the CBI to blithely

ignore the statutory remedy available to it under Section 397 Cr.P.C

and thereafter resort to filing of an application under Section 482

Cr.P.C.

25. We may also note that in the event a revision is lawfully instituted

before the High Court but the same is thereafter found to be not 

[2024] 4 S.C.R. 321

Vipin Sahni and Another v. Central Bureau of Investigation

maintainable on some other ground, it would be open to the High

Court to treat the same as a petition filed under Section 482 Cr.P.C

in order to do justice in that case. However, the reverse analogy may

not apply in all cases and it would not be open to the High Court

to blindly convert or treat a petition filed under Section 482 Cr.P.C

as one filed under Section 397 Cr.P.C., without reference to other

issues, including limitation. When the specific remedy of revision was

available to the CBI, it could not have ignored the same and filed a

petition under Section 482 Cr.P.C. We, therefore, find in favour of

the appellants even on this count.

26. On the above analysis we are of the opinion that the learned

Magistrate was fully justified in exercising power under Section 239

Cr.P.C. and discharging the appellants from criminal proceedings in

relation to Case No. 456 of 2012. The High Court adopted a rather

technical approach and practically concluded that the appellants

were guilty of deliberately withholding relevant information so as

to secure the approvals by deceitful means. This finding of the

High Court is not supported by the admitted facts, which indicate

disclosure of the mortgage at the outset when the first application

was made and, therefore, there is no possibility of inferring that the

appellants conspired in terms of Section 120A IPC to commit an

illegal act of suppression so as to secure the approvals. Further, the

AICTE itself never claimed that it was dishonestly induced to grant

such approvals and that essential link is altogether missing, whereby

any such criminal charge of cheating can be sustained against the

appellants. The impugned order dated 20.01.2023 passed by the

Allahabad High Court in Application U/S 482 Cr.P.C No. 11426 of

2021 is, therefore, set aside and the order of discharge passed by

the learned Special Judicial Magistrate, CBI Court, Ghaziabad, in

Case No. 456 of 2012 is restored. In consequence, the appellants

shall stand discharged of the alleged offence under Sections 420

and 120B IPC in Case Crime No. 219 of 2011 (E) 0016.

The criminal appeal is allowed accordingly.

Pending applications shall stand closed.

Headnotes prepared by: Result of the case:

Himanshu Rai, Hony. Associate Editor Appeal allowed.

(Verified by: Abhinav Mukerji, Sr. Adv.)