Constitution of India – Art 226 – Exercise of discretionary powers under – Delay or laches, effect – On facts, four years after the allotment of LPG distributorship in favour of the appellant, and on acceptance of the alternate land offered by the appellant and permitting him to construct the godown and the showroom, the unsuccessful bidder challenged the decision of the Corporation – High Court dismissed the writ petition, however, in appeal the allotment made in favour of the appellant was set aside – Correctness:

* Author

[2024] 4 S.C.R. 506 : 2024 INSC 314

Mrinmoy Maity

v.

Chhanda Koley and Others

(Civil Appeal No. 5027 of 2024)

18 April 2024

[Pamidighantam Sri Narasimha and Aravind Kumar,* JJ.]

Issue for Consideration

Writ court, if justified in entertaining the writ petition filed by the

respondent No.1 challenging the approval granted in favour of the

appellant for starting LPG distributorship.

Headnotes

Constitution of India – Art 226 – Exercise of discretionary

powers under – Delay or laches, effect – On facts, four years

after the allotment of LPG distributorship in favour of the

appellant, and on acceptance of the alternate land offered

by the appellant and permitting him to construct the godown

and the showroom, the unsuccessful bidder challenged the

decision of the Corporation – High Court dismissed the writ

petition, however, in appeal the allotment made in favour of

the appellant was set aside – Correctness:

Held: Delay defeats equity – Delay or laches is one of the factors

which should be born in mind by the High Court while exercising

discretionary powers u/Art. 226 – Applicant who approaches the

court belatedly ought not to be granted the extraordinary relief

by the writ courts – In a given case, the High Court may refuse

to invoke its extraordinary powers if laxity on the part of the

applicant to assert his right has allowed the cause of action to

drift away and attempts are made subsequently to rekindle the

lapsed cause of action – Discretion to be exercised would be

with care and caution, depending upon the facts of the case –

Though, for filing of a writ petition, no fixed period of limitation

is prescribed, however, it has to be filed within a reasonable

time – If it is found that the writ petitioner is guilty of delay and

laches, the High Court ought to dismiss the petition on that sole

ground itself, in as much as the writ courts are not to indulge

in permitting such indolent litigant to take advantage of his own 

[2024] 4 S.C.R. 507

Mrinmoy Maity v. Chhanda Koley and Others

wrong – On facts, writ petition ought to have been dismissed

on the ground of delay and laches itself – Writ petitioner was

aware of all the developments including that of the allotment of

distributorship having been made in favour of the appellant way

back in 2014, yet did not challenge and only on acceptance of

the alternate land offered by the appellant in 2017 and permitting

him to construct the godown and the showroom, the same was

challenged and thereby the writ petitioner had allowed his right

if at all if any to be drifted away or acquiesced in the acts of the

Corporation – Also, the appropriate government felt the need of

permitting the Oil Marketing Companies to be more flexible and

as such modification to the guidelines had been brought about

whereby the applicants were permitted to offer alternate land

where the land initially offered by them was found deficient or

not suitable or change of the land, subject to specifications laid

down in the advertisement being met – Thus, the order of the

Division Bench of the High Court is set aside, and that of the

Single Judge is restored. [Para 15]

Case Law Cited

Tridip Kumar Dingal and others v. State of W.B and

others. [2008] 15 SCR 194 : (2009) 1 SCC 768;

Karnataka Power Corportion Ltd. and another v. K.

Thangappan and another [2006] 3 SCR 783 : (2006)

4 SCC 322; Chennai Metropolitan Water Supply &

Sewerage Board and others v. T.T. Murali Babu [2014]

1 SCR 987 : (2014) 4 SCC 108 – referred to.

List of Acts

Constitution of India.

List of Keywords

LPG distributorship; Exercise of discretionary powers; Delay or

laches; Extraordinary relief; Cause of action; Period of limitation;

Acquiescence.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5027 of 2024

From the Judgment and Order dated 13.09.2018 of the High Court

at Calcutta in CAN No. 809 of 2018

508 [2024] 4 S.C.R.

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Appearances for Parties

Pijush K. Roy, Sr. Adv., Pritthish Roy, Ms. Kakali Roy, Asit Roy, Rajan

K. Chourasia, Advs. for the Appellant.

Shekhar Naphade, Sr. Adv., Zoheb Hossain, Ms. Asha Gopalan

Nair, Sandeep Narain, Ms. Nivedita Nair, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Aravind Kumar, J.

1. Leave granted.

2. The short point that arises for consideration in this appeal is:

“Whether the writ court was justified in entertaining the writ

petition filed by the respondent No.1 herein challenging

the approval dated 03.06.2014 granted in favour of

the appellant herein for starting LPG distributorship at

Jamalpur, District Burdwan?”

3. The facts in brief which has led to filing of the present appeal are

as under:

4. An advertisement came to be issued on 09.09.2012 calling for

application for distributors to grant LPG distributorship under

GP Category at Jamalpur, District Burdwan. From amongst the

applications so received, the application submitted by the appellant

as well as respondent No.1 were found to be in order. Since both

the appellant and the respondent No.1 were held to be eligible from

amongst the six (6) candidates, draw of lots was held on 11.05.2013

and appellant was found successful candidate and was selected

for verification of the documents. A letter of intent was issued to

the appellant on 24.02.2014 and on 03.06.2014 the approval was

granted by the BPCL in favour of the appellant for starting LPG

distributorship at the notified place.

5. After a lapse of 4 years, the respondent No.1 filed a complaint with

the BPCL alleging that land offered by the appellant was a Barga land

and same cannot be considered. Subsequently application having

been filed by the appellant offering an alternate land, the Corporation

allowed the prayer of the appellant to construct the godown and

showroom on the alternate land offered by the appellant.

[2024] 4 S.C.R. 509

Mrinmoy Maity v. Chhanda Koley and Others

6. The respondent No.1 being a rival applicant for grant of distributorship,

having participated in submitting the application and being

unsuccessful in the draw of lots held way back in the year 2013

and being aggrieved by the decision of the Corporation to permit the

appellant to commence the construction of godown and showroom

on the alternate land offered, filed a writ petition in the year 2017

i.e., on 10.04.2017. Initially, there was an order of status quo passed

by the Learned Single Judge and on receiving the report from

the Corporation the writ petition came to be dismissed vide order

dated 18.01.2018 on the ground that the writ petitioner (respondent

No.1 herein) had no locus standi since she had participated in the

selection process. Being aggrieved by the same the intra-court appeal

came to be filed and the appellate court by the impugned judgment

allowed the appeal on the ground (a) that the successful applicant

had not offered unencumbered land for construction of godown and

showroom; (b) the land offered by the appellant was in contravention

of clause 7.1(vi) and (vii) of the guidelines for selection of regular

LPG Distributors; (c) the amendment of the said guidelines brought

about subsequently, cannot be made applicable retrospectively. The

allotment made in favour of the (appellant herein) was set aside by

the impugned order and as a consequence of it, the letter of intent,

the letter of approval accepting the alternate land offered by the

(appellant herein) and all subsequent permissions, licences and no

objections issued in his favour were held to be of no effect. Hence,

this appeal.

7. We have heard Shri Pijush K. Roy, learned Senior Counsel appearing

for the appellant and Shri Zoheb Hossain, learned counsel appearing

for respondent No.1 and Shri Shekhar Naphade, learned Senior

Counsel for the Corporation. Learned counsel for the appellant

would vehemently contend that Learned Single Judge had rightly

dismissed the writ petition on the ground of lack of locus standi of

the writ petitioner and had dissolved the interim order granted earlier.

It is also contended that by the time the interim order of status quo

came to be passed by the Learned Single Judge on 20.07.2017, the

appellant herein had already submitted an application for accepting

the alternate land offered and which request came to be processed

and the applicant (appellant herein) had been allowed to construct

the godown and showroom on the alternate land so offered. These

facts though being available, the Division Bench ignoring the same 

510 [2024] 4 S.C.R.

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had proceeded on tangent in accepting the plea of the writ petitioner

without examining the aspect of delay and giving a complete go by

for laches exhibited on the part of the writ petitioner and extended

the olive branch on surmises and conjectures and as such the

impugned order is liable to be set-aside and consequently, writ

petition which came to be dismissed by the Learned Single Judge

has to be upheld. Shri Shekhar Naphade, learned Senior Counsel

appearing on behalf of the Corporation has fairly submitted that in

the light of the appellant herein being successful in the allotment

by draw of lots, had been issued with the letter of intent and the

prayer for offering the alternate land was also accepted and having

regard to the subsequent development namely the subsequent

notification dated 30.04.2015 issued by the appropriate government

directing the Oil Marketing Companies to provide flexibility in the

selection guidelines by providing an “opportunity to offer alternate

land in response to the advertisement” which clarified the position

with regard to alternative land offered had been acted upon by the

Corporation in the instant case and being satisfied with the bona

fides of the applicant/appellant, the Corporation had permitted the

construction, and accordingly the construction has been put up along

with building, the godown and the showroom and as such he has

prayed for suitable orders being passed.

8. On the contrary, Shri Zoheb Hossain, learned counsel appearing for

the respondent No.1 vehemently opposed the prayer of the appellant

herein and supported the order passed by the Division Bench. He

would contend that issue of delay in filing the Writ Petition has been

rightly ignored by the Division Bench and same has to recede to

background in the facts obtained in the present case, in as much

as the blatant violation of the guidelines would go to the root of the

matter and the inherent defect cannot be allowed to be rectified,

that too by relying upon an amendment to the guidelines which has

come into force subsequent to the advertisement in question or in

other words rules of the game could not have been changed after

the commencement of the game which was exactly the exercise

undertaken by the Learned Single Judge and rightly found to be

improper by the Division Bench. Hence, he prays for dismissal of

the appeal.

9. Having heard rival contentions raised and on perusal of the facts

obtained in the present case, we are of the considered view that 

[2024] 4 S.C.R. 511

Mrinmoy Maity v. Chhanda Koley and Others

writ petitioner ought to have been non-suited or in other words writ

petition ought to have been dismissed on the ground of delay and

laches itself. An applicant who approaches the court belatedly or

in other words sleeps over his rights for a considerable period of

time, wakes up from his deep slumber ought not to be granted the

extraordinary relief by the writ courts. This Court time and again has

held that delay defeats equity. Delay or laches is one of the factors

which should be born in mind by the High Court while exercising

discretionary powers under Article 226 of the Constitution of India. In

a given case, the High Court may refuse to invoke its extraordinary

powers if laxity on the part of the applicant to assert his right has

allowed the cause of action to drift away and attempts are made

subsequently to rekindle the lapsed cause of action.

10. The discretion to be exercised would be with care and caution. If

the delay which has occasioned in approaching the writ court is

explained which would appeal to the conscience of the court, in

such circumstances it cannot be gainsaid by the contesting party

that for all times to come the delay is not to be condoned. There

may be myriad circumstances which gives rise to the invoking of the

extraordinary jurisdiction and it all depends on facts and circumstances

of each case, same cannot be described in a straight jacket formula

with mathematical precision. The ultimate discretion to be exercised

by the writ court depends upon the facts that it has to travel or the

terrain in which the facts have travelled.

11. For filing of a writ petition, there is no doubt that no fixed period of

limitation is prescribed. However, when the extraordinary jurisdiction

of the writ court is invoked, it has to be seen as to whether within

a reasonable time same has been invoked and even submitting of

memorials would not revive the dead cause of action or resurrect the

cause of action which has had a natural death. In such circumstances

on the ground of delay and laches alone, the appeal ought to be

dismissed or the applicant ought to be non-suited. If it is found that

the writ petitioner is guilty of delay and laches, the High Court ought

to dismiss the petition on that sole ground itself, in as much as the

writ courts are not to indulge in permitting such indolent litigant to take

advantage of his own wrong. It is true that there cannot be any waiver

of fundamental right but while exercising discretionary jurisdiction

under Article 226, the High Court will have to necessarily take into

consideration the delay and laches on the part of the applicant in 

512 [2024] 4 S.C.R.

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approaching a writ court. This Court in the case of Tridip Kumar

Dingal and others v. State of W.B and others., (2009) 1 SCC 768

has held to the following effect:

“56. We are unable to uphold the contention. It is no doubt

true that there can be no waiver of fundamental right. But

while exercising discretionary jurisdiction under Articles 32,

226, 227 or 136 of the Constitution, this Court takes into

account certain factors and one of such considerations is

delay and laches on the part of the applicant in approaching

a writ court. It is well settled that power to issue a writ is

discretionary. One of the grounds for refusing reliefs under

Article 32 or 226 of the Constitution is that the petitioner

is guilty of delay and laches.

57. If the petitioner wants to invoke jurisdiction of a

writ court, he should come to the Court at the earliest

reasonably possible opportunity. Inordinate delay in making

the motion for a writ will indeed be a good ground for

refusing to exercise such discretionary jurisdiction. The

underlying object of this principle is not to encourage

agitation of stale claims and exhume matters which have

already been disposed of or settled or where the rights of

third parties have accrued in the meantime (vide State of

M.P. v. Bhailal Bhai [AIR 1964 SC 1006 : (1964) 6 SCR

261], Moon Mills Ltd. v. Industrial Court [AIR 1967 SC 1450]

and Bhoop Singh v. Union of India [(1992) 3 SCC 136 :

(1992) 21 ATC 675 : (1992) 2 SCR 969] ). This principle

applies even in case of an infringement of fundamental

right (vide Tilokchand Motichand v. H.B. Munshi [(1969) 1

SCC 110] , Durga Prashad v. Chief Controller of Imports

& Exports [(1969) 1 SCC 185] and Rabindranath Bose v.

Union of India [(1970) 1 SCC 84] ).

58. There is no upper limit and there is no lower limit as to

when a person can approach a court. The question is one

of discretion and has to be decided on the basis of facts

before the court depending on and varying from case to

case. It will depend upon what the breach of fundamental

right and the remedy claimed are and when and how the

delay arose.”

[2024] 4 S.C.R. 513

Mrinmoy Maity v. Chhanda Koley and Others

12. It is apposite to take note of the dicta laid down by this Court in

Karnataka Power Corportion Ltd. and another v. K. Thangappan

and another, (2006) 4 SCC 322 whereunder it has been held that

the High Court may refuse to exercise extraordinary jurisdiction if

there is negligence or omissions on the part of the applicant to assert

his right. It has been further held thereunder:

“6. Delay or laches is one of the factors which is to be

borne in mind by the High Court when they exercise their

discretionary powers under Article 226 of the Constitution.

In an appropriate case the High Court may refuse to invoke

its extraordinary powers if there is such negligence or

omission on the part of the applicant to assert his right

as taken in conjunction with the lapse of time and other

circumstances, causes prejudice to the opposite party.

Even where fundamental right is involved the matter is

still within the discretion of the Court as pointed out in

Durga Prashad v. Chief Controller of Imports and Exports

[(1969) 1 SCC 185 : AIR 1970 SC 769] . Of course, the

discretion has to be exercised judicially and reasonably.

7. What was stated in this regard by Sir Barnes Peacock in

Lindsay Petroleum Co. v. Prosper Armstrong Hurd [(1874)

5 PC 221 : 22 WR 492] (PC at p. 239) was approved by

this Court in Moon Mills Ltd. v. M.R. Meher [AIR 1967 SC

1450] and Maharashtra SRTC v. Shri Balwant Regular

Motor Service [(1969) 1 SCR 808 : AIR 1969 SC 329] .

Sir Barnes had stated:

“Now, the doctrine of laches in courts of equity is not

an arbitrary or a technical doctrine. Where it would be

practically unjust to give a remedy either because the

party has, by his conduct done that which might fairly be

regarded as equivalent to a waiver of it, or where by his

conduct and neglect he has though perhaps not waiving

that remedy, yet put the other party in a situation in which

it would not be reasonable to place him if the remedy were

afterwards to be asserted, in either of these cases, lapse

of time and delay are most material. But in every case,

if an argument against relief, which otherwise would be

just, is founded upon mere delay, that delay of course not 

514 [2024] 4 S.C.R.

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amounting to a bar by any statute of limitation, the validity

of that defence must be tried upon principles substantially

equitable. Two circumstances always important in such

cases are, the length of the delay and the nature of the

acts done during the interval which might affect either party

and cause a balance of justice or injustice in taking the

one course or the other, so far as it relates to the remedy.”

8. It would be appropriate to note certain decisions of this

Court in which this aspect has been dealt with in relation to

Article 32 of the Constitution. It is apparent that what has

been stated as regards that article would apply, a fortiori,

to Article 226. It was observed in Rabindranath Bose v.

Union of India [(1970) 1 SCC 84 : AIR 1970 SC 470] that

no relief can be given to the petitioner who without any

reasonable explanation approaches this Court under Article

32 after inordinate delay. It was stated that though Article

32 is itself a guaranteed right, it does not follow from this

that it was the intention of the Constitution-makers that

this Court should disregard all principles and grant relief

in petitions filed after inordinate delay.

9. It was stated in State of M.P. v. Nandlal Jaiswal [(1986)

4 SCC 566 : AIR 1987 SC 251] that the High Court in

exercise of its discretion does not ordinarily assist the tardy

and the indolent or the acquiescent and the lethargic. If

there is inordinate delay on the part of the petitioner and

such delay is not satisfactorily explained, the High Court

may decline to intervene and grant relief in exercise of its

writ jurisdiction. It was stated that this rule is premised on

a number of factors. The High Court does not ordinarily

permit a belated resort to the extraordinary remedy because

it is likely to cause confusion and public inconvenience and

bring, in its train new injustices, and if writ jurisdiction is

exercised after unreasonable delay, it may have the effect

of inflicting not only hardship and inconvenience but also

injustice on third parties. It was pointed out that when writ

jurisdiction is invoked, unexplained delay coupled with the

creation of third-party rights in the meantime is an important

factor which also weighs with the High Court in deciding

whether or not to exercise such jurisdiction.”

[2024] 4 S.C.R. 515

Mrinmoy Maity v. Chhanda Koley and Others

13. Reiterating the aspect of delay and laches would disentitle the

discretionary relief being granted, this Court in the case of Chennai

Metropolitan Water Supply & Sewerage Board and others v. T.T.

Murali Babu, (2014) 4 SCC 108 has held:

“16. Thus, the doctrine of delay and laches should not

be lightly brushed aside. A writ court is required to weigh

the explanation offered and the acceptability of the same.

The court should bear in mind that it is exercising an

extraordinary and equitable jurisdiction. As a constitutional

court it has a duty to protect the rights of the citizens

but simultaneously it is to keep itself alive to the primary

principle that when an aggrieved person, without adequate

reason, approaches the court at his own leisure or pleasure,

the court would be under legal obligation to scrutinise

whether the lis at a belated stage should be entertained

or not. Be it noted, delay comes in the way of equity. In

certain circumstances delay and laches may not be fatal

but in most circumstances inordinate delay would only

invite disaster for the litigant who knocks at the doors

of the court. Delay reflects inactivity and inaction on the

part of a litigant — a litigant who has forgotten the basic

norms, namely, “procrastination is the greatest thief of

time” and second, law does not permit one to sleep and

rise like a phoenix. Delay does bring in hazard and causes

injury to the lis.”

14. Having regard to the afore-stated principles of law enunciated

herein above, when we turn our attention to facts on hand, it would

not detain us for too long for accepting the plea of the appellant

in affirming the order of the Learned Single Judge and dismissing

the writ petition on the ground of delay and laches. We say so for

reasons more than one, firstly, it requires to be noticed that the writ

petitioner was a rival applicant along with the appellant herein for

grant of LPG distributorship and she along with the appellant herein,

were found to be eligible and the appellant herein was held to be

successful by virtue of draw of lots. This factual aspect would reflect

that the writ petitioner was aware of all the developments including

that of the allotment of distributorship having been made in favour

of the appellant herein way back in 2014, yet did not challenge and

only on acceptance of the alternate land offered by the appellant in 

516 [2024] 4 S.C.R.

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March, 2017 and permitting him to construct the godown and the

showroom. Same was challenged in the year 2017 and thereby the

writ petitioner had allowed his right if at all if any to be drifted away or

in other words acquiesced in the acts of the Corporation and as such

on this short ground itself the appellant has to succeed. Secondly,

another fact which has swayed in our mind to accept the plea of the

appellant herein is that, undisputedly the appropriate government

had felt the need of permitting the Oil Marketing Companies to be

more flexible and as such modification to the guidelines had been

brought about on 15.04.2015 whereby the applicants were permitted

to offer alternate land where the land initially offered by them was

found deficient or not suitable or change of the land, subject to

specifications as laid down in the advertisement being met. There

being no stiff opposition or strong resistance to the alternate land

offered by the appellant herein not being as per the specifications

indicated in the advertisement, we see no reason to substitute the

court’s view to that of the experts namely, the Corporation which

has in its wisdom has exercised its discretion as is evident from the

report filed in the form of affidavit by the territory manager (LPG)/

BPCL whereunder it has been stated:

“13. On the basis of xxxxxxxxxxxxxxxxxxxxx to nonagricultural. In his application form the said Respondent

no. 9 had provided the Land for godown at Plot No 3732,

Khatian No LR 2585, 2586, 2587 JL No 34, Mouza Kolera,

Jamalpur, Distt Burdwan admeasuring 33 decimal. The

same was cleared based on Registered Lease Deed,

which was found to have been genuine in all respects as

confirmed by the ADSR Jamalpur.

16. The land offered by the successful candidate, namely

the Respondent no.9 was found to be eligible by relying

on the abovementioned clauses, which determine eligibility

of the land based on the status of ownership. The fact

that the said land was a “Barga” land is not a material

condition on the basis of which the Respondent no. 9’s

candidature could be cancelled.

24. Subsequently, FVC of the said newly offered land by

the LOI holder, Respondent no. 9 was conducted and the

same was found suitable for construction of LPG Godown. 

[2024] 4 S.C.R. 517

Mrinmoy Maity v. Chhanda Koley and Others

A letter being DGP:LPG OMP: Jamalpur dated 21.03.2017

was provided to the said LOI holder informing him that

the alternate land provided is found suitable and therefore

his request to construct LPG Godown in the said alternate

land has been approved. A copy of the said letter dated

21.03.2017 is annexed hereto and is marked as “R-5”.

25. It is therefore submitted that the steps taken by the

Respondent no. 3 in allowing the LOI holder, Respondent

no. 9, to provide alternate land for construction of godown,

have been in consonance. with the change in policies and

no favoritism or nepotism, as suggested by the petitioner

has been in play.

32. It is further clarified that the FVC conducted on the

original land offered by the Respondent no. 9 was found to

be satisfactory on all counts, and only on the basis of this,

his request for provision of alternate land wall accepted.”

15. Hence, we are of the considered view that the order of the Learned

Division Bench is liable to be set aside and accordingly, it is set

aside. The order of the Learned Single Judge stands restored for the

reasons indicated herein above and the appeal is allowed accordingly

with no order as to costs.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeal allowed.

Armed Forces – Women Short Service Commissioned Officers – Pensionary benefits – Order by this Court granting one time pensionary benefits to the women Short Service Commissioned Officers on basis that they have completed the minimum qualifying service of twenty years, required for pension – Eligible officers in terms thereof, not entitled to any arrears of salary, but the arrears of pension payable with effect from the date on which the officers are deemed to have completed twenty years of service – Pursuant thereto, women officers were released from service at the end of the fourteenth year and for computing the pension, salary was taken as the last drawn salary as of the date of the release, and no increments were granted to the applicants between the date of release and the date on which they are deemed to have completed twenty years service in terms of the aforesaid order – Applicants case that directions not correctly interpreted, once the applicants have been treated to have completed the minimum qualifying service required for pension, the last drawn salary must be taken as on that date and increments have to be computed for pension:

[2024] 4 S.C.R. 518 : 2024 INSC 311

Wg Cdr A U Tayyaba (retd) & Ors.

v.

Union of India & Ors.

(Miscellaneous Application Diary No. 8208 of 2024)

15 April 2024

[Dr. Dhananjaya Y Chandrachud, CJI, J B Pardiwala and

Manoj Misra, JJ.]

Issue for Consideration

Matter pertains to clarification of the order passed by this Court as

regards grant of pensionary benefits to the women Short Service

Commissioned Officers in Armed Forces.

Headnotes

Armed Forces – Women Short Service Commissioned

Officers – Pensionary benefits – Order by this Court granting

one time pensionary benefits to the women Short Service

Commissioned Officers on basis that they have completed

the minimum qualifying service of twenty years, required

for pension – Eligible officers in terms thereof, not entitled

to any arrears of salary, but the arrears of pension payable

with effect from the date on which the officers are deemed to

have completed twenty years of service – Pursuant thereto,

women officers were released from service at the end of the

fourteenth year and for computing the pension, salary was

taken as the last drawn salary as of the date of the release,

and no increments were granted to the applicants between the

date of release and the date on which they are deemed to have

completed twenty years service in terms of the aforesaid order

– Applicants case that directions not correctly interpreted,

once the applicants have been treated to have completed

the minimum qualifying service required for pension, the last

drawn salary must be taken as on that date and increments

have to be computed for pension:

Held: Order by this Court granting one time pensionary benefits

to the women Short Service Commissioned Officers clarified –

Pensionary payments would have to be computed on the basis

of the salary on the date of the deemed completion of twenty

years – Women SSCOs entitled to notional increments between 

[2024] 4 S.C.R. 519

Wg Cdr A U Tayyaba (retd) & Ors. v. Union of India & Ors.

the date of release and the date on which they have completed

the minimum qualifying period for pension, namely, the deemed

completion of twenty years – On basis thereof, the one time

pensionary payment due in terms of the previous order revised and

arrears due and payable to be paid within the stipulated period –

Issues as regards the computation of the commuted value of the

pensionary payment, encashment of annual leave, and grant of

ECHS benefits also clarified. [Paras 11]

List of Keywords

Pensionary benefits; Women Short Service Commissioned

Officers; One time pensionary benefits; Minimum qualifying

service required for pension; Arrears of salary; Arrears of

pension; Last drawn salary; Date of the release; Increments;

Notional increments; Computation of the commuted value of

the pensionary payment; Encashment of annual leave; Grant

of ECHS benefits.

Case Arising From

CIVIL APPELLATE JURISDICTION: Miscellaneous Application Diary

No. 8208 of 2024

In

Civil Appeal Nos. 79-82 of 2022

From the Judgment and Order dated 16.11.2022 of the Supreme

Court of India in C.A. No. 79, 80, 81 and 82 of 2012

Appearances for Parties

Ms. Pooja Dhar, Ms. S. Ambica, Ms. Anshula Vijay Kumar Grover,

Advs. for the Appellants.

R Bala, Sr. Adv., Santosh Kr, Akshay Amritanshu, Mohd. Akhil, Sachin

Sharma, Alankar Gupta, Dr. Arun Kumar Yadav, Dr. N. Visakamurthy,

Arvind Kumar Sharma, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Order

1 We have heard Ms Pooja Dhar, counsel appearing on behalf of the

appellants and Mr R Balasubramanian, senior counsel appearing

on behalf of the respondents.

520 [2024] 4 S.C.R.

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2 Delay in filing the Miscellaneous Application is condoned.

3 These proceedings arise from a judgment dated 16 November 2022

in Wg Cdr A U Tayyaba (retd) & Ors v Union of India & Ors1

. The

specific directions which form the subject matter of these proceedings

are set out below:

"i. All the women SSCOs governed by the present batch

of cases shall be considered for the grant of onetime pensionary benefits on the basis that they have

completed the minimum qualifying service required

for pension;

ii. The cases of the appellants shall be evaluated on the

basis of the HRP dated 19 November 2010 bearing

Part No 5; and

iii. The officers who are found eligible for the grant of

pensionary benefits in terms of the present direction

shall not be entitled to any arrears of salary, but the

arrears of pension shall be payable with effect from

the date on which the officers are deemed to have

completed twenty years of service;”

4 In terms of the above directions, the Union government has issued

Pension Payment Orders2

 for the officers.

5 During the course of the hearing, it has emerged before the Court

that the women officers were released from service at the end of

the fourteenth year and the salary for the purpose of computing the

pension was taken as the last drawn salary as of the date of the

release. No increments have been granted to the applicants between

the date of release and the date on which they are deemed to have

completed twenty years service in terms of the judgment of this Court

dated 16 November 2022.

6 According to the applicants, the authorities have not correctly

interpreted the operative directions; once the applicants have been

treated to have completed the minimum qualifying service required

for pension, the last drawn salary must be taken as on that date and

increments have to be computed for pension.

1 Civil Appeal Nos 79-82 of 2012

2 PPOs

[2024] 4 S.C.R. 521

Wg Cdr A U Tayyaba (retd) & Ors. v. Union of India & Ors.

7 The first direction which was issued by this Court was that all the

women Short Service Commissioned Officers3

 governed by the batch

of cases would be considered for the grant of one time pensionary

benefits “on the basis that they have completed the minimum qualifying

service required for pension”. The minimum qualifying service for

pension is twenty years.

8 Hence:

(i) The pensionary payments would have to be computed on the

basis of the salary on the date of the deemed completion of

twenty years; and

(ii) The women SSCOs would be entitled to notional increments

between the date of release and the date on which they have

completed the minimum qualifying period for pension, namely,

the deemed completion of twenty years.

9 The above directions clearly flow out of the first direction contained

in paragraph 34 of the judgment dated 16 February 2022. This was

subject to the further stipulation in direction (iii) that they will not be

entitled to any arrears of salary, but the arrears of pension would

be payable with effect from the date on which they are deemed to

have completed twenty years of service.

10 Based on the clarification, the one time pensionary payment due in

terms of the judgment dated 16 November 2022 shall be revised

and arrears that remain due and payable shall be paid on or before

15 June 2024.

11 Apart from the above direction, further clarifications of this Court are

necessary on the following issues:

(i) The computation of the commuted value of the pensionary

payment;

(ii) Encashment of annual leave; and

(iii) Grant of ECHS benefits.

12 As regards (i) above, the commuted value shall be computed as on

the date of the deemed completion of twenty years. The commutation

3 SSCOs

522 [2024] 4 S.C.R.

Digital Supreme Court Reports

factor shall, therefore, be that which was applicable on the date of

the deemed completion of twenty years. The arrears that remain to

be paid shall be paid over on or before 15 June 2024.

13 As regards the encashment of annual leave, in the event that any

of the officers is found to have accumulated the maximum of 300

days in respect of which encashment is allowable, the difference

between the encashable quantum of 300 days and the amount which

has already been released shall be computed and paid over on or

before 15 June 2024.

14 The officers governed by this batch and other similarly placed officers

would be entitled to ECHS benefits as retired officers.

15 Apart from the above directions, Mr R Balasubramanian clarifies that

while the PPO indicated that it will be for “life”, this would not in any

way debar the appellants from the benefit of any revised fixation of

pension as and when it becomes due and payable. The PPOs, it

has been submitted, shall also be corrected, since they erroneously

referred to the applicants as having been ‘released’. This shall be

corrected in terms of the judgment dated 16 November 2022 before

15 June 2024.

16 The above directions resolve the grievances of the appellantsapplicants. Accordingly, the Miscellaneous Application shall stand

disposed of.

17 Pending application, if any, stands disposed of.

Headnotes prepared by: Nidhi Jain Result of the case:

Application disposed of.

* 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.

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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) 

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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 

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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 

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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.

Digital Supreme Court Reports

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.

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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.

Digital Supreme Court Reports

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.