Charge sheet filed for offenses of extortion U/s 384 IPC, without fulfilling the ingredients of Section 383 IPC, is quashed with cost of Rs.2 lacs.....

Charge sheet filed for offenses of extortion U/s 384 IPC, without fulfilling the ingredients of Section 383 IPC, is quashed with cost of Rs.2 lacs..... 

Neutral Citation No. - 2023:AHC-LKO:82336

Court No. - 12

Case :- APPLICATION U/S 482 No. - 11678 of 2023

Applicant :- Ram Gopal Gupta

Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt.

Lko. And 3 Others

Counsel for Applicant :- Riyaz Ahmad,Divesh Sinha,Sunil

Counsel for Opposite Party :- G.A.

Hon'ble Rajeev Singh,J.

1. Counter affidavit filed by learned A.G.A. for the State is

taken on record.

2. Learned counsel for the applicant does not want to file any

rejoinder affidavit.

3. Heard learned counsel for the applicant as well as learned

A.G.A. for the State and perused the record.

4. The present application has been filed for quashing the

impugned charge-sheet dated 13.10.2020 arising out of the

F.I.R. No. 432 of 2020 dated 27.09.2020 U/s 384 I.P.C., Police

Station- Lonar, District- Hardoi as well as the impugned

summoning order dated 25.04.2022 and the impugned order

dated 02.08.2023 passed in criminal Case No. 6561/2022

including entire proceedings thereof.

5. On 30.11.2023 following order was passed:-

"1. Heard learned counsel for the applicant and learned A.G.A. for the

State.

2. The present application under Section 482 Cr.P.C. is filed with the

prayer to quash the proceedings of Criminal Case No.6561/2022, arising

out of Case Crime No.432/2020, under Section 384 I.P.C., Police Station

Lonar, District Hardoi.

3. Learned counsel for the applicant has submitted that case in question

was initiated on the basis of one aired video but the said video was not

made part of the investigation. He also submitted that charge sheet under

Section 384 I.P.C. was filed by the Investigating Officer in the most

mechanical manner and no offence is made out under Section 384 I.P.C.

He next submitted that for proving the said offence it is mandatory that

there must be a victim, therefore, indulgence of this Court is necessary.

4. Learned A.G.A. admitted this fact that video was not made part of the

case diary and he also does not dispute this fact that there is no victim in

the entire case diary. 

5. Considering the submissions of learned counsel for the parties, going

through the record of the application as well as other relevant documents,

as F.I.R. in question was lodged by the Sub Inspector, Rishi Kumar, P.S.

Lonar, Hardoi on the basis of some video but neither the same was made

part of the case diary nor sent to the F.S.L. for examination, therefore,

matter requires consideration.

6. List this case on 8.12.2023.

7. On the next date, Circle Officer, Police Station Lonar, District Hardoi

shall appear before this Court and explain how offence under Section 384

I.P.C. is made out and also file affidavit in this regard, failing which, cost

shall be imposed.

8. Till the next date of listing, impugned proceeding shall remain stayed."

6. In pursuance of aforesaid order, Circle Officer- Mr. Vinod

Kumar Dubey, Circle Officer, Harpalpur, Hardoi is present

today before this Court. He states that during the course of

investigation, victim was not traceable, as a result, the statement

of informant/sub inspector who prepared the recovery memo

was recorded and charge-sheet was submitted by Investigating

Officer on the basis of recovery as well as confessional

statement of applicant.

7. Learned counsel for the applicant submits that applicant has

been falsely implicated in the present case on the basis of

presumption that he was extorting the money from truck

drivers. He further submits that the F.I.R. of the case in question

was lodged by Sub Inspector- Rishi Kapoor, Police StationLonar, District- Hardoi with the averment that on 27.09.2020,

when he was patrolling along with Constable- Ram Singh in the

area of Police Outpost Bawan, he received a video, in which, he

found that at No Entry Point, one police personnel was

extorting the money from truck drivers and was keeping it in

his pocket. On taking cognizance of the said video, Sub

Inspector- Rishi Kapoor went at No Entry Point and the alleged

video was shown to the person who was deployed at No Entry

Point then the said person admitted that the photo in the alleged

video was of him but it was old video. In this regard, the name

of deployed police personnel was asked and search was also

conducted; then it was found that he was Ram Gopal Gupta, s/o

late Beche Lal r/o Husainpur Sahora, Post- Sakatpur, Police

Station- Lonar, District- Hardoi, who was deployed as home

guard at the No Entry Point. After search, total thirty rupees

(three notes of ten rupees) were found from his pocket and after

interrogation, he admitted that he was taking the money from

people those were passing from the No Entry Point; he also

stated that all the extorted money has already been spent, and he

also told that Rs. 30/- which were recovered from him was

brought from his house. Thereafter, statement of Constable-

Ram Singh and Sub Inspector- Rishi Kapoor was recorded U/s

161 Cr.P.C. and charge-sheet was submitted by Investigating

Officer.

8. Further submission of learned counsel for the applicant is

that as per the provisions of Section 384 I.P.C., it is necessary

that for the purpose of extortion, aggrieved person is a

necessary ingredient but in the present case, no one is aggrieved

as merely on the basis of presumption, applicant was implicated

and charge-sheet was submitted by Investigating Officer U/s

384 I.P.C. It is further submitted that the discharge application

was moved by applicant before learned trial court on

02.08.2022 which was rejected without considering the

ingredients of provisions of Section 383 I.P.C. Relying on the

decision of Hon'ble Apex Court in the case of State of Haryana

and others Vs. Bhajan Lal and others reported in 1992 SCC

(Cri.) 426, it is, thus, submitted that summoning order dated

25.04.2022 as well as the impugned order dated 02.08.2023 and

charge-sheet dated 13.10.2020 may be quashed.

9. Learned A.G.A. opposes the prayer of applicant and submits

that after investigation, charge-sheet was submitted by

Investigating Officer and all the defense of applicant can be

considered at the appropriate stage during the trial. He also

concedes the fact that Rs. 30/- were recovered from applicant

and he was taken into custody on the basis of presumption. He

further submits that during the course of the

investigation, applicant had himself admitted that he extorted

the money at the No Entry Point. He also submits that there is

no illegality in the aforesaid charge-sheet which was bet by

Prosecuting Officer and approved by Circle Officer of the area

in question. Learned A.G.A. lastly submits that there is no

illegality in the summoning order and the order by which the

discharge application of applicant was rejected. However, he

does not dispute the fact that no aggrieved person was found

during the course of investigation.

10. Considering the submissions of learned counsel for the

applicant, learned A.G.A. and going through the contents of

application, F.I.R., impugned order as well as other relevant

enclosures; it is evident that as per the prosecution case, on

27.09.2020, informant- Sub Inspector- Rishi Kapoor received a

video on his phone, in which, it was shown that at No Entry

Point, one person in police dress was taking money from the

truck drivers after putting them under fear and was keeping the

money inside his pocket. Sub Inspector- Rishi Kapoor,

immediately, went to the No Entry Point and found that he was

the same person, as shown in video, who was extorting the

money. The alleged video was shown to the said police

personnel who accepted that the shown photo in the video was

of him. Thereafter, search was conducted and total Rs. 30/-

were found from his pocket for which he explained that this

amount was brought from his house when he was coming to his

duty. It is also evident that neither any extorted amount nor any

aggrieved person was found, at the time of search or during the

course of investigation. Moreover, admittedly no statement of

any aggrieved person was recorded.

11. The arrest/recovery memo which was prepared is as under:-

"नकल फरर गगिरफ्तताररी एक नफर अगभियक्त अन्तगि य रत धतारता-384 आई०परी०सरी० थतानता-

ललोनतार, जनपर-हररलोई आज गरनतानांक-27.09.2020 कलो मम उ 0 गन० ऋगषि कपपूर मय

हमरताहरी कता० रताम ससनांह कके चचौककी ककेत्र बतावन मम मतामपूर थता। जब म जगिररीशपयर चचौरताहता थता म

तलो फलोन पर एक वरीगडियलो वतायरल हहआ गक नलो इन्टटरी प्वताइन्ट पर वरर्दी गरखतायरी रके रहता हह

जलो टटकलो कलो चतालकलो कलो डिरता धमकताकर पहसके वसपूल कर रहता हह और अपनरी जकेब मम रख

रहता हह। उक्त वरीगडियलो कता सनांजतान लकेकर नलो इन्टटरी प्वताईन्ट पर पहहनांचता तलो वह व्यगक्त नलो

इन्टटरी प्वताईन्ट पर डपूटरी कर रहता हह। उस व्यगक्त कलो वरीगडियलो गरखताकर पहचतान करतायरी

गियरी तलो उस व्यगक्त नके कहता गक यह मकेररी फलोटलो ह। वरीगडियलो पयरतानता हह। नताम पतता पपूछतके ह म हए

जतामता तलताशरी ककी गियरी तलो उसनके अपनता नताम रताम गिलोपताल गियपता पयत्र स्व० बकेचके लताल

गनवतासरी-हहसहन सहलोरता, थतानता-ललोनतार, हररलोई उम्र कररीब 55 बततायता गक म हलोम गिताडि म र मम

तहनतात हहहूँ। मकेरता नम्बर-0450 हह। वतरमतान मम नलो इन्टटरी प्वताईन्ट पर डपूटरी कर रहता हहहूँ।

जतामता तलताशरी सके रतागहनके पकेन्ट ककी जकेब मम (10X3=30) तरीस रू० बरतामर हहए। उक्त

व्यगक्त पहसता वसपूलके ककी सम्बन्ध मम कडताई सके पपूछता तलो बततायता गक म नलो इन्ट म टरी प्वताईन्ट पर

आनके जतानके वतालके ललोगिगों सके डिरता धमकताकर पहसता लके रहता थता। उस गरन जलो पहसता महनके ललोगिलो

सके सलयता थता वह खचर हलो गियके ह। यह तरीस रू० म म म अपनके घर सके गकरतायके कके सलयके लकेकर

आयता थता। इनकता यह अपरताध एक रण्डिनरीय अपरताध हह। धतारता -384 आई०परी०सरी०

अवगित करतातके हहए समय 16.25 बजके पयसलस गहरतासत मम सलयता। रचौरतानके गगिरफ्तताररी मता०

सवर्वोच्च न्यतायतालय व मतानवतासधकतार आयलोगि कके आरकेशलो व गनररशगों कता पपूररततः पतालन

गकयता गियता। वरर्दी कता उतरवताकर सतारता कपडके पहनतायके गियके। फरर मचौकके पर सलखकर

पढ़कर सयनताकर सम्बनन्धत कके अलतामतात बनवतायके जता रह ह। रचौरतानके कताय म रवताहरी जनतता कके

कताफकी ललोगि आ गियके थके सजनसके गिवताहरी कके सलयके कहता गियता तलो बयरताई भिलताई कता वतास्तता

रकेकर कलोई भिरी व्यगक्त गिवताहरी रकेनके कलो तहयतार नहहीं हहआ। गगिरफ्तताररी ककी सपूचनता थतानता

आकर अगभियक्त कके पररजनगों अकब सके ररी जतायकेगिरी। फर य र ककी कताबरन कतापरी अगभियक्त कलो य

मचौकके पर ररी गियरी। ह० गहन्ररी रताम गिलोपताल, ह० गहन्ररी कता० रताम ससनांह गरनतानांक-27.09.20

थतानता ललोनतार, हररलोई, ह० अनांगकेजरी अपठनरीय एस०आई० 27.09.2020 (ऋगषि कपपूर

उ 0 गन0) थतानता ललोनतार, हररलोई।"

12. As per the provisions of Section 383 I.P.C., it is necessary

that there must be an aggrieved person in the case of extortion.

Section 383 I.P.C. reads as under:-

"Extortion- Whoever intentionally puts any person in fear of any injury to

that person, or to any other, and thereby dishonestly induces the person so

put in fear to deliver to any person any property, or valuable security or

anything signed or sealed which may be converted into a valuable

security, commits "extortion".

Illustrations

(a) A threatens to publish a defamatory libel concerning Z unless Z gives

him money. He thus induces Z to give him money. A has committed

extortion.

(b) A threatens Z that he will keep Z's child in wrongful confinement,

unless Z will sign and deliver to A a promissory note binding Z to pay

certain monies to A. Z sings and delivers the note. A has committed

extortion.

(c) A threatens to send club-men to plough up Z's field unless Z will sign

and deliver to B a bond binding Z under a penalty to deliver certain

produce to B, and thereby induces Z to sign and deliver the bond. A has

committed extortion.

(d) A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign

or affix his seal to a blank paper and deliver it to A. Z sings and delivers

the paper to A. Here, as the paper so signed may be converted into a

valuable security. A has committed extortion."

13. Section 384 I.P.C. reads as under:-

"Punishment for extortion- Whoever commits extortion shall be punished

with imprisonment of either description for a term which may extend to

three years, or with fine, or with both."

14. Evidently, the trial court rejected the discharge application

in the most mechanical manner without considering the

aforesaid provisions as well as the pronouncement of Hon'ble

Apex Court in the case of State of Haryana and others Vs.

Bhajan Lal and others reported in 1992 SCC (Cri.) 426 (Para

102). In the aforesaid judgement, Hon'ble Apex Court observed

that, in case, no offense is made out after going through the

entire F.I.R. or the evidence collected by the Investigating

Officer, the F.I.R as well as charge-sheet and its consequential

proceedings are liable to be set aside.

15. Para 102 of the aforesaid judgement reads as under:-

"102. In the backdrop of the interpretation of the various relevant

provisions of the Code under Chapter XIV and of the principles of law

enunciated by this Court in a series of decisions relating to the exercise of

the extraordinary power under Article 226 or the inherent powers under

Section 482 of the Code which we have extracted and reproduced above,

we give the following categories of cases by way of illustration wherein

such power could be exercised either to prevent abuse of the process of

any court or otherwise to secure the ends of justice, though it may not be

possible to lay down any precise, clearly defined and sufficiently

channelised and inflexible guidelines or rigid formulae and to give an

exhaustive list of myriad kinds of cases wherein such power should be

exercised.

(1) Where the allegations made in the first information report or the

complaint, even if they are taken at their face value and accepted in their

entirety do not prima facie constitute any offence or make out a case

against the accused.

(2) Where the allegations in the first information report and other

materials, if any, accompanying the FIR do not disclose a cognizable

offence, justifying an investigation by police officers under Section 156(1)

of the Code except under an order of a Magistrate within the purview of

Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint

and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable

offence but constitute only a non-cognizable offence, no investigation is

permitted by a police officer without an order of a Magistrate as

contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and

inherently improbable on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding

against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions

of the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or

where there is a specific provision in the Code or the concerned Act,

providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide

and/or where the proceeding is maliciously instituted with an ulterior

motive for wreaking vengeance on the accused and with a view to spite

him due to private and personal grudge."

16. In the aforesaid context, the observations made by Hon'ble

Apex Court in the case of Salib @ Shalu @ Salim vs. State of

U.P. and others reported in Criminal Appeal No. 2344 of 2023

(Arising out of S.L.P. (Criminal) No. 3152 of 2023) dated

08.08.2023, in paragraphs nos. 22, 23, 24 & 25 are being

referred hereinbelow:-

"22. So from the aforesaid, it is clear that one of the necessary ingredients

of the offence of extortion is that the victim must be induced to deliver to

any person any property or valuable security, etc. That is to say, the

delivery of the property must be with consent which has been obtained by

putting the person in fear of any injury. In contrast to theft, in extortion

there is an element of consent, of course, obtained by putting the victim in

fear of injury. In extortion, the will of the victim has to be overpowered by

putting him or her in fear of injury. Forcibly taking any property will not

come under this definition. It has to be shown that the person was induced

to part with the property by putting him in fear of injury. The illustrations

to the Section given in the IPC make this perfectly clear.

23. In the aforesaid context, we may refer to the following observations

made by a Division Bench of the High Court of Patna in Ramyad Singh v.

Emperor in Criminal Revision No. 125 of 1931 (Pat):-

"If the facts had been that the complainant's thumb had been forcibly

seized by one of the petitioners and had been applied to the piece of paper

notwithstanding his struggles and protests, then I would agree that there is

good ground for saying that the offence committed whatever it may be,

was not the offence of extortion because the complainant would not have

been induced by the fear of injury but would have simply been the subject

of actual physical compulsion."

It was held:-

"It is clear that this definition makes it necessary for the prosecution to

prove that the victims Narain and Sheonandan were put in fear of injury to

themselves or to others, and further, were thereby dishonestly induced to

deliver papers containing their thumb impressions. The prosecution story

in the present case goes no further than that thumb impressions were

'forcibly taken from them. The details of the forcible taking were

apparently not put in evidence. The trial Court speaks of the wrists of the

victims being caught and of their thumb impressions being then 'taken'

The lower Courts only speak of the forcible taking of the victim's thumb

impression; and as this does not necessarily involve inducing the victim to

deliver papers with his thumb Impressions (papers which could no doubt

be converted into valuable securities). I must hold that the offence of

extortion is not established."

24. Thus, it is relevant to note that nowhere the first informant has stated

that out of fear, she paid Rs. 10 Lakh to the accused persons. To put it in

other words, there is nothing to indicate that there was actual delivery of

possession of property (money) by the person put in fear. In the absence of

anything to even remotely suggest that the first informant parted with a

particular amount after being put to fear of any injury, no offence under

Section 386 of the IPC can be said to have been made out.

25. However, as observed earlier, the entire case put up by the first

informant on the face of it appears to be concocted and fabricated. At this

stage, we may refer to the parameters laid down by this Court for

quashing of an FIR in the case of Bhajan Lal (supra). The parameters

are:-

"(1) Where the allegations made in the first information report or the

complaint, even if they are taken at their face value and accepted in their

entirety do not prima facie constitute any offence or make out a case

against the accused.

(2) Where the allegations in the first information report and other

materials, if any, accompanying the FIR do not disclose a cognizable

offence, justifying an investigation by police officers under Section 156(1)

of the Code except under an order of a Magistrate within the purview of

Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint

and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable

offence but constitute only a non- cognizable offence, no investigation is

permitted by a police officer without an order of a Magistrate as

contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and

inherently improbable on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding

against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions

of the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or

where there is a specific provision in the Code or the concerned Act,

providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide

and/or where the proceeding is maliciously instituted with an ulterior

motive for wreaking vengeance on the accused and with a view to spite

him due to private and personal grudge."

17. It is evident from the record that no alleged photograph is

annexed with the case diary. Further when there is no aggrieved

person in the case of extortion, then merely on the basis of

imagination, no such person can be implicated. As the chargesheet was bet by Prosecuting Officer and approved by Circle

Officer of the area in question in the most negligent manner

without considering the ingredients of Section 383 I.P.C.,

therefore, this Court is of the view that the impugned chargesheet dated 13.10.2020 and its consequential proceedings as

well the summoning order dated 25.04.2022 along with the

order dated 02.08.2023 are liable to be set aside and are hereby

set aside.

18. With the above observations, the present application U/s

482 Cr.P.C. is allowed.

19. However, before parting with the judgement, it is worthy to

be noted that the present case is the classic example of false

implication, in which, the applicant has been victimized by

implicating him falsely and, hence, he should be compensated

with the cost of some token amount.

20. Accordingly, a cost/sum of Rs. 2 lakhs be paid to

applicant by District Magistrate, Hardoi who is head of

criminal justice system in the district (as per Para 06 of U.P.

Police Regulation) and Superintendent of Police, Hardoi

within two months from today and also file a compliance

report before Senior Registrar of this Court.

21. Office is directed to communicate this order to the

following authorities for information and necessary action,

forthwith:-

(i) The Trial Court,

(ii) Legal Remembrancer, Government of U.P., Lucknow,

(iii) Principal Secretary, Department of Home, Government of

U.P., Lucknow,

(iv) Director General of Police, U.P., Lucknow,

(v) Director General of Prosecution, U.P., Lucknow.

Order Date :- 14.12.2023

Arpan

where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil Court that proceedings under Section 145 should not be allowed to continue.

where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil Court that proceedings under Section 145 should not be allowed to continue.

Neutral Citation No. - 2023:AHC:241628

A.F.R.

Court No. - 90

Case :- APPLICATION U/S 482 No. - 9198 of 2021

Applicant :- Aman Deep Singh Shishya

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- K.S. Tiwari,Amber Khanna,Raj Kumar

Khanna,Vivek Tiwari

Counsel for Opposite Party :- G.A.,Pawan Kumar Shukla,Santosh

Kumar Pandey,Sheshadri Trivedi

Hon'ble Dinesh Pathak,J.

1. Heard Sri Raj Kumar Khanna learned counsel for the applicant and Sri

Satish Trivedi (Senior Advocate) assisted by Sri Sheshadri Trivedi learned

counsel for the opposite party no.2 as well as learned A.G.A. for the State.

2. The present applicant has invoked the inherent jurisdiction of this Court

under Section 482 Cr.P.C. beseeching the quashing of the order dated

04.03.2021 passed by City Magistrate, Mathura, under Section 145 (1)

Cr.P.C. in Case No.35 of 2021 (Aman Deep Singh vs. Adarsh Pal Gupta)

and entire proceeding of said case under Section 145 Cr.P.C.

3. Facts culled out from the record reveals that the property in question

known as Hari Nikunj Ashram exist in two separate buildings situated at

Sri Radha Rani Anna Kshetra, Sri Banke Bihari Colony, Vrindavan,

Mathura. Police has submitted report dated 02.03.2021 with an averment

that the first party (applicant herein) and the second party (contesting

opposite party herein) are claiming their right, title and possession over

the property in question, therefore, considering the strained situation on

spot both the parties may be summoned and Ashram (property in

question) may be attached till the decision with respect to the right and

possession of parties over there, so that, law and order could prevail.

Considering the police report, learned Magistrate, by order dated

04.02.2021, has passed preliminary order under Section 145 (1) Cr.P.C.

calling upon the parties to present their respective cases with respect to

the possession and title over the property in question, which is under

challenge before this Court.

4. Learned counsel for the applicant has hammered the preliminary order

under Section 145 (1) Cr.P.C. on the ground of pendency of the Civil Suit

No.15 of 2021 and submitted that the property in question namely Hari

Nikunj Ashram is run under the supervision and control of Panchayati

Akhada Nirmal. Owing to disturbance in the possession of Panchayat

Akhada Nirmal created by the opposite party no.2 (second party in

proceeding under Section 145 Cr.P.C.), Panchayati Akhada Nirmal along

with Hari Nikunj Ashram has filed a civil suit being O.S. No.15 of 2021

dated 06.01.2021 for permanent prohibitory injunction against the

opposite party no.2 herein. Considering delay in decision on the interim

injunction application plaintiff has approached before this Court by

moving a petition being mater Under Article 227 No.115 of 2021. Coordinate Bench of this Court, vide order dated 13.01.2021, has disposed of

the said petition with a direction to decide the interim injunction

application (7-C) within a period of one months, however, interim

protection for maintaining status-quo was granted as well for a period of

two months or till the decision on the aforesaid application, whichever is

earlier. During pendency of the aforesaid civil suit, preliminary order

dated 04.03.2021 under Section 145 (1) has been passed on the basis of

police report dated 02.03.2021. Interim injunction application was

rejected by order dated 09.09.2021 (Annexure-C.A.1), however, Misc.

Appeal No.28 of 2021 is still pending against said rejection order. It has

been emphasized that during the existence of interim order passed by

Hon’ble High Court, vide order dated 13.01.2021, and pendency of the

civil suit which was filed on 06.01.2021, learned Magistrate had inherent

lack of jurisdiction to entertain the police report and pass preliminary

order under Section 145 (1) Cr.P.C. It is further submitted that the

possession of the first party (applicant herein) is evident from the Ameen

2 of 10

report dated 14.01.2021 submitted in the civil suit and the observation

made by the trial court in its order dated 09.09.2021. It is further

submitted that in the light of the fact that the civil suit was pending before

the court competent and opposite party no.2 has a remedy to file an

appropriate application for the possession and appoint a receiver for the

purposes of protection of the property in question, there is no justification

of continuing a parallel proceeding in criminal side under Section 145

Cr.P.C. In support of the his submission learned counsel for the applicant

has relied upon and case of Ram Sumer Puri Mahant (appellant) vs.

State of U.P. and others (respondent), AIR 1985 Supreme Court 472,

and Amresh Tiwari (appellant) vs. Lalta Pradad Dubey and others

(respondents), AIR 2000 Supreme Court 1504.

5. Per contra learned counsel for private opposite party no.2 has

vehemently opposed the submissions advanced by learned counsel for the

applicant and contended that mere pendency of the civil suit between the

parties is not sufficient ground to drop the proceeding under Section 145

Cr.P.C. It is further contended that no interim protection has been granted

to the present applicant at any stage of civil litigation, even, interim

protection granted by Hon’ble High Court was vacated after two months

from the date of its order i.e. 13.01.2021. In absence of any interim order

or final decision from the court competent with respect to the right and

tile over the property in question, the initiation of proceeding under

Section 145 Cr.P.C. cannot be said to be illegal. It is further contended

that the applicant has still an opportunity to contest before the Magistrate

concerned by way of filing their objection and adducing evidence in

support of his case. Learned counsel for private opposite party has relied

upon the following cases :-

(I) Jhunamal @ Devandas vs. State of M.P. and others, AIR 1988

Supreme Court 173;

3 of 10

(II) Sanjay Kumar vs. VI Additional District Judge, Bareilly decided

by co-ordinate Bench of this court on 16.01.1996, 1996 1 AWC 277;

(III) Sanjay Sahai vs. State of U.P. and another decided by co-ordinate

Bench of this Court vide order dated 19.11.2022 passed in application

U/S 482 No.36518 of 2022.

6. Having considered the rival submissions advanced by learned

counsel for the parties and perusal of record, it is manifested that property

in question is known as Hari Nikunj Ashram. Present applicant (first

party) is claiming his right and title over the property in question on the

basis of registered sale deed and the gift deed said to have been executed

by then owners of the property in question in favour of the predecessor in

the interest of the applicant herein. However, opposite party no.2 is

claiming his right and title over the property in question through separate

society. At this juncture, it would not be befitting to consider this aspect of

the matter which relates to the right and title of the parties and the same is

subjudice before the civil court in Original Suit No.15 of 2021.

Admittedly, Original Suit No.15 of 2021 has been filed on 16.01.2021.

However, having considered the delay in decision on the interim

injunction application (7-C), present applicant has invoked the

supervisory jurisdiction of this Court by way of filing a petition under

Article 227 No.115 of 2021. Co-ordinate Bench of this Court vide order

dated 13.01.2021 has disposed of the aforesaid petition with a direction to

decide the interim injunction application (Paper No.7-C) within a period

of one month, however, for a period of two months or till the decision on

the interim injunction application, whichever is earlier, parties were

directed to maintain status-quo. During the existence of two months

protection for maintaining status-quo and the pendency of the suit, police

has submitted report dated 02.03.2021, which was taken into account

while passing the preliminary order under Section 145 (1) Cr.P.C. Thus,

order impugned has been passed not only during pendency of the suit but

also during existence of the interim order granted by this Court. Apart

4 of 10

from that while rejecting the interim injunction application, vide order

dated 09.09.2021, learned Civil Judge (Senior Division), Mathura has

made an observation acknowledging the possession of the present

applicant over the property in question, however, he has refused to grant

interim injunction on the ground that plaintiff/applicant has failed to prove

his possession legal. Learned Civil Court might has not passed interim

injunction in favour of the present applicant, however, in my considered

opinion, his observation with respect to the possession of the present

applicant over the property in question cannot be ignored particularly for

the purposes of parallel criminal proceeding under Section 145 (1) Cr.P.C.

Opposite party no.2 herein has been arrayed as defendant no.1 in the

Original Suit No.15 of 2021 and he has an ample opportunity to move an

appropriate application before the Civil Court to get injunction in his

favour with respect to the property in question along with the counter

claim to establish his legal right and title over there. On the premise of

pendency of the civil suit which has already been instituted on 06.01.2021

prior to the police report dated 02.01.2021 and preliminary order dated

04.01.2021 under Section 145 (1) Cr.P.C., there is no justification to

continue the parallel criminal proceeding under Section 145 Cr.P.C. to

examine the possession of the parties over the property in question. In the

matter of Amrish Tiwari (supra) proceeding under Section 145 Cr.P.C.

was dropped by learned Magistrate considering the pendency of the civil

suit, however, same was reversed by the higher court. Hon’ble Supreme

Court has upheld the order passed by learned Sub-Divisional Magistrate

and held that multiplicity of the litigation should be avoided as it is not in

the interest of the parties and the public time would be wasted over

meaningless litigation. It is further observed that when possession is being

examined by the civil court and the parties are in a position to approach

the civil court for adequate protection of the property during pendency of

the dispute, the parallel proceeding i.e. under Section 145 Cr.P.C. should

not continue. Hon’ble Supreme Court in said case has considered the ratio

5 of 10

decided by Hon’ble Supreme Court in the matter of Ram Sumer Puri

Mahant (supra). For ready reference relevant paragraph Nos.12, 13 and 14

of the judgement passed in the case of Amresh Tiwari (supra) is quoted

hereinbelow:-

“12. The question then is whether there is any infirmity in the order of

the S.D.M. discontinuing the proceedings under Section 145 Criminal

Procedure Code. The law on this subject-matter has been settled by

the decision of this Court in the case of Ram Sumer Puri Mahant v.

State of U.P., reported in, (1985) 1 SCC 427: (AIR 1985 SC 472: 1985

Cri LJ 752). In this case it has been held as follows:

“When a civil litigation is pending for the property wherein the

question of possession is involved and has been adjudicated, we see

hardly any justification for initiating a parallel criminal proceeding

under Section 145 of the Code. There is no scope to doubt or dispute

the position that the decree of the civil court is binding on the

criminal Court in a matter like the one before us. Counsel for

respondents 2-5 was not in a position to challenge the proposition

that parallel proceedings should not be permitted to continue and in

the event of a decree of the civil Court, the Criminal Court should not

be allowed to invoke its jurisdiction particularly when possession is

being examined by the civil court and parties are in a position to

approach the Civil Court for interim orders such as injunction or

appointment of receiver for adequate protection of the property

during pendency of the dispute. Multiplicity of litigation is not in the

interest of the parties nor should public time be allowed to be wasted

over meaningless litigation. We are, therefore, satisfied that parallel

proceedings should not continue."

13. We are unable to accept the submission that the principles laid

down in Ram Sumers case (AIR 1985 SC 472: 1985 Cri LJ 752)

would only apply if the civil Court has already adjudicated on the

dispute regarding the property and given a finding. In our view Ram

Sumers case is laying down that multiplicity of litigation should be

avoided as it is not in the interest of the parties and public time would

be wasted over meaningless litigation. On this principle it has been

held that when possession is being examined by the civil Court and

parties are in a position to approach the civil Court for adequate

protection of the property during the pendency of the dispute, the

parallel proceedings i.e. Section 145 proceedings should not continue.

6 of 10

14. Reliance has been placed on the case of Jhummamal alias

Devandas v. State of Madhya Pradesh reported in, (1988) 4 SCC 452:

(AIR 1988 SC 1973: 1989 Cri LJ 82). It is submitted that this

authority lays down that merely because a civil suit is pending does

not mean that proceedings under Section 145, Criminal Procedure

Code should be set at naught. In our view this authority does not lay

down any such broad proposition. In this case the proceedings under

Section 145, Criminal Procedure Code had resulted in a concluded

order. Thereafter the party, who had lost, filed civil proceedings. After

filing the civil proceedings he prayed that the final order passed in the

Section 145 proceedings be quashed. It is in that context that this

Court held that merely because a civil suit had been filed did not

mean that the concluded order under Section 145 Criminal Procedure

Code should be quashed. This is entirely a different situation. In this

case the civil suit had been filed first. An Order of status quo had

already been passed by the competent civil Court. Thereafter Section

145 proceedings were commenced. No final order had been passed in

the proceedings under Section 145. In our view on the facts of the

present case the ratio laid down in Ram Sumers case (AIR 1985 SC

472: 1985 Cri LJ 752) (supra) fully applies. We clarify that we are not

stating that in every case where a civil suit is filed. Section 145

proceedings would never lie. It is only in cases where civil suit is for

possession or for declaration of title in respect of the same property

and where reliefs regarding protection of the property concerned can

be applied for and granted by the civil Court that proceedings under

Section 145 should not be allowed to continue. This is because the

civil court is competent to decide the question of title as well as

possession between the parties and the orders of the civil Court would

be binding on the Magistrate.”

7. In a recent judgement of Hon’ble Apex Court, viz. Mohd. Shakir

vs. State of U.P. & others [2022 Live Law (SC) 727], it has been held that

during pendency of civil suit qua property in question, while dropping the

proceeding under Section 145 Cr.P.C., there is no justification for the

learned Magistrate to record any finding or issue any interim direction.

The Magistrate ought to have left all the relevant aspects for consideration

of the competent civil court, without recording any finding in the matter.

7 of 10

8. Having careful consideration to the ratio decided by Hon’ble

Supreme Court, in the matters as discussed above, in the given facts of the

present case, there is no room of doubt that while the civil suit is pending

between the parties with respect to the possession and title over the

property in question, parties could avail appropriate remedy before the

civil court concerned qua their possession and protection of the property

during pendency of the suit.

9. Judgement relied upon by learned counsel for the respondent does

not come in rescue to his contention. Case of Jhunamal @ Devandas

(supra) has been distinguished by Hon’ble Supreme Court in its

judgement passed in the case of Amresh Tiwari (supra). In the matter of

Jhunamal @ Devandas (supra), after culmination of proceeding under

Section 145 Cr.P.C. civil suit was filed and Hon’ble High Court has

quashed the order passed under Section 145 Cr.P.C. on the ground of

pendency of the civil suit. In this backdrop of the facts, Hon’ble Supreme

Court has observed that concluded proceeding under Section 145 Cr.P.C.

should not be set at naught merely because unsuccessful party has

approached before the civil court. So far as the case of Sanjay Kumar

(supra) is concerned, same is not much helpful as well to the opposite

party wherein proceeding under Section 145 Cr.P.C. has been held to be

valid for want of adjudicate interim injunction from the civil court. It has

been observed by co-ordinate Bench of this Court in the cited case that

proceeding under Section 145 Cr.P.C. should be dropped only when the

civil court has passed some effective order indicating as to which of the

parties was entitled to possession. Apart from that proceeding should also

be dropped when civil court has appointed a receiver or has made same

arrangement for maintenance of such property. But, when the civil court

does not clarify the position regarding the possession of contesting parties

by passing an effective order, the criminal proceeding are not to be

dropped because in that case both the parties may stake their claim for the

possession and the situation may lead to the breach of peace. Applying the

8 of 10

observation made by co-ordinate Bench of this Court in the given

circumstances of the present case, I am of the opinion that while deciding

the interim injunction application (Paper No.7-C), learned trial court has

made unequivocal observation acknowledging the possession of the

present applicant over the property in question, however, refused to grant

interim order on the ground that possession is not legal. While discussing

the prima-facie case and balance of convenience, learned trial court has

made observation that possession of the plaintiff (applicant) is for a short

period that too it was restrictive and was not peaceful. It has also been

observed that possession of the applicant was not in accordance with law.

Thus, learned civil court has unequivocally indicated the possession of the

plaintiff (applicant herein) over the property in question that might be

illegal or not peaceful. In the matter of Sandeep Sahai (supra), co-ordinate

Bench of this Court has declined to exercise its inherent jurisdiction under

Section 482 Cr.P.C. on the ground that the applicant in that matter had an

alternative remedy to approach before the authority concerned by filing an

appropriate application/objection against the preliminary order under

Section 145 (1) Cr.P.C.

10. In this conspectus, as above, I am of the considered view that in the

peculiar facts and circumstances of the present case wherein at the time of

passing the preliminary order dated 04.05.2021 under Section 145 (1)

Cr.P.C., interim order dated 13.01.2021 passed by Hon’ble High Court

was in existence and civil suit was pending and, precisely, learned civil

court in its order dated 0909.2020 has indicated the possession of the

plaintiff over the property in question, there is no justification to keep the

parties indulge in a parallel criminal proceeding as enunciated under

Section 145 Cr.P.C. Ratio decided by Hon’ble Supreme Court in the

matter of Amresh Tiwari is still a law of land in the matter pertaining to

proceeding under Section 145 Cr.P.C. This Court found an abuse of

process of court in passing the impugned preliminary order dated

04.02.2021 under Section 145 (1) Cr.P.C., therefore, to secure the ends of

9 of 10

justice, same is liable to be quashed. There is no need to say that the right,

title and possession of the parties would be abided by the final outcome of

the civil suit pending before the court competent and in case of any

peculiar circumstances requiring interim protection parties can approach

before the civil court for appropriate order.

11. Resultantly, instant application under Section 482 Cr.P.C. is hereby

allowed and the preliminary order dated 04.02.2021 passed by City

Magistrate, Mathura, under Section 145 (1) Cr.P.C. in Case No.35 of 2021

(Aman Deep Singh vs. Adarsh Pal Gupta), under challenge before this

Court, is hereby quashed.

Order Date :- 20.12.2023

Jitendra

10 of 10

2024 INSC 1- Whether the sale deed was registered with the interpolation made about the description/area of the property sold and the same is valid ? held that The corrections unilaterally made by the first defendant after the execution of the sale deed without the knowledge and consent of the purchaser will have to be ignored.

Whether the sale deed was registered with the interpolation made about the description/area of the property sold and the same is valid ?

held that The corrections unilaterally made by the first defendant after the execution of the sale deed without the knowledge and consent of the purchaser will have to be ignored. 

The first defendant admittedly made the said interpolation after it was executed but before it was registered. 

In terms of Section 47 of the Registration Act, a registered sale deed where entire consideration is paid would operate from the date of its execution. 

Thus, the sale deed as originally executed will operate. 

The corrections unilaterally made by the first defendant after the execution of the sale deed without the knowledge and consent of the purchaser will have to be ignored. 

Only if such changes would have been made with the consent of the original plaintiff, the same could relate back to the date of the execution. 

It is not even the first defendant's case that the subsequent correction or interpolation was made before its registration with the consent of the original plaintiff.

2024 INSC 1

 CIVIL APPEAL NO. 9098 OF 2013 Page 1 of 8

NON REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9098 OF 2013

KANWAR RAJ SINGH (D) TH. LRS. …APPELLANT(S)

VERSUS

GEJO. (D) TH.LRS & ORS. …RESPONDENT(S)

J U D G M E N T

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. Unsuccessful defendants have preferred this Civil Appeal

for taking exception to the judgment and order dated 16th

March 2010 passed by the Punjab and Haryana High Court.

The respondents are the legal representatives of Smt. Gejo. She

was the plaintiff in a suit for declaration. She claimed a

declaration of ownership over the land measuring 71 kanals 8

marlas (“suit property”) based on the sale deed executed on 6th

June 1975 and registered on 23rd July 1975. The first

defendant, Kanwar Raj Singh (predecessor of the present

appellants), executed the sale deed. Subsequently, the first

defendant executed a gift deed regarding a 2/3rd share in 

 CIVIL APPEAL NO. 9098 OF 2013 Page 2 of 8

respect of the same property in favour of the eighth defendant

– Smt. Ravinder Kaur. The eighth defendant is the first

defendant’s wife. According to the case of the original plaintiff

– Smt. Gejo, before registration of the sale deed, an

interpolation was made in the sale deed by the first defendant

by adding that only 1/3rd share measuring 23 kanals and 8

marlas was being sold. The suit was contested by the first

defendant, contending that what was sold was the area of 23

kanals and 8 marlas, which was his 1/3rd share in the suit

property.

2. The Trial Court decreed the suit and held that what was

sold to the original plaintiff was the entire land measuring 71

kanals 8 marlas. The first and eighth defendants preferred an

appeal before the District Court. On 23rd August 1984, the

Additional District Judge allowed the said appeal and held that

the correction made in the sale deed was bona fide and was not

fraudulently made. The plaintiff preferred a second appeal

before the High Court. The plaintiff died during the pendency

of the second appeal. Respondent nos. 1(i) & 1(v) are the legal

representatives of the original plaintiff. By the impugned

judgment, the appeal was allowed, and the decree of the Trial

Court was restored.

SUBMISSIONS

3. Learned counsel appearing for the appellants submitted

that as the price of the property subject matter of the sale deed

was only Rs. 30,000/-, it is impossible that a vast area of 71

kanals 8 marlas was sold under the sale deed. The learned 

 CIVIL APPEAL NO. 9098 OF 2013 Page 3 of 8

counsel submitted that the sale took effect from the date on

which the sale deed was registered and not from the date on

which it was executed. He submitted that what is conveyed by

the sale deed is what is mentioned in the registered sale deed.

He submitted that even the agreement for sale executed before

the execution of the sale deed refers to the sale of 1/3rd share

of the first defendant and not the entire property. He submitted

that the entry of the name of the original plaintiff in the revenue

records as the owner of the whole area would not confer any

title as what is relevant is the description of the property in the

registered sale deed. The learned counsel relied upon a decision

of the Constitution Bench in the case of Ram Saran Lall v.

Domini Kuer1 and submitted that in view of the said decision,

the sale would be completed when the sale deed was registered

and, therefore, the description of the property recorded in the

registered sale deed will prevail. The respondents are not

represented.

CONSIDERATION OF SUBMISSIONS

4. We have perused the judgments of the Trial Court,

District Court and the impugned judgment of the High Court.

The first Appellate Court recorded that it is the case of the

defendants that before registration of the sale deed, the first

defendant incorporated a change in the sale deed stating that

it was in respect of 1/3rd share in the area of 71 kanals and 8

marlas. The first Appellate Court noted that the original first

defendant's evidence was that the correction was made by him

1 AIR 1961 SC 1747

 CIVIL APPEAL NO. 9098 OF 2013 Page 4 of 8

with his own pen in the sale deed before its registration. The

appellants are the legal representatives of the first defendant.

In this case, it is an admitted position that while executing the

sale deed, the area of the land sold was shown as 71 kanals

and 8 marlas and subsequently, the area was altered to 1/3rd

of the said area by the first defendant before the sale deed was

registered.

5. The High Court, in the impugned judgment, has relied

upon Section 47 of The Registration Act, 1908 (the Registration

Act), which reads thus:

“47. Time from which registered

document operates.—A registered

document shall operate from the time from

which it would have commenced to operate if

no registration thereof had been required or

made, and not from the time of its

registration.”

6. On plain reading of Section 47, it provides that a

registered document shall operate from the time from which it

would have commenced to operate if no registration thereof was

required. Thus, when a compulsorily registerable document is

registered according to the Registration Act, it can operate from

a date before the date of its registration. The date of the

operation will depend on the nature of the transaction. If, in a

given case, a sale deed is executed and the entire agreed

consideration is paid on or before execution of the sale deed,

after it is registered, it will operate from the date of its

execution. The reason is that if its registration was not

required, it would have operated from the date of its execution.

 CIVIL APPEAL NO. 9098 OF 2013 Page 5 of 8

7. Now, we come to the decision of the Constitution Bench

in the case of Ram Saran Lall (Supra). In paragraph 8 of the

judgment, the Constitution Bench held thus:

“8. We do not think that the learned AttorneyGeneral's contention is well founded. We will

assume that the learned Attorney-General's

construction of the instrument of sale that the

property was intended to pass under it on the

date of the instrument is correct. Section 47

of the Registration Act does not, however, say

when a sale would be deemed to be complete.

It only permits a document when registered,

to operate from a certain date which may be

earlier than the date when it was registered.

The object of this section is to decide which of

two or more registered instruments in respect

of the same property is to have effect. The

section applies to a document only after it has

been registered. It has nothing to do with the

completion of the registration and therefore

nothing to do with the completion of a sale

when the instrument is one of sale. A sale

which is admittedly not completed until the

registration of the instrument of sale is

completed, cannot be said to have been

completed earlier because by virtue of Section

47 the instrument by which it is effected, after

it has been registered, commences to operate

from an earlier date. Therefore we do not

think that the sale in this case can be said, in

view of Section 47, to have been completed on

January 31, 1946. The view that we have

taken of Section 47 of the Registration Act

seems to have been taken in Tilakdhari

Singh v. Gour Narain [AIR (1921) Pat 150] . We

believe that the same view was expressed

in Nareshchandra Datta v. Gireeshchandra

Das [(1935) ILR 62 Cal 979] and Gobardhan

Bar v. Guna Dhar Bar [ILR (1940) II Cal 270].”

(underline supplied)

 CIVIL APPEAL NO. 9098 OF 2013 Page 6 of 8

8. The Constitution Bench held that Section 47 of the

Registration Act does not deal with the issue when the sale is

complete. The Constitution Bench held that Section 47 applies

to a document only after it has been registered, and it has

nothing to do with the completion of the sale when the

instrument is one of sale. It was also held that once a document

is registered, it will operate from an earlier date, as provided in

Section 47 of the Registration Act.

9. Section 54 of the Transfer of Property Act, 1984 (the

Transfer of Property Act) reads thus:

“54. “Sale” defined.—“Sale” is a transfer of

ownership in exchange for a price paid or

promised or part-paid and part-promised.

Sale how made.—Such transfer, in the case

of tangible immoveable property of the value

of one hundred rupees and upwards, or in the

case of a reversion or other intangible thing,

can be made only by a registered instrument.

In the case of tangible immoveable property

of a value less than one hundred rupees,

such transfer may be made either by a

registered instrument or by delivery of the

property.

Delivery of tangible immoveable property

takes place when the seller places the buyer,

or such person as he directs, in possession of

the property.

Contract for sale.—A contract for the sale of

immoveable property is a contract that a sale

of such property shall take place on terms

settled between the parties.

It does not, of itself, create any interest in or

charge on such property.”

 CIVIL APPEAL NO. 9098 OF 2013 Page 7 of 8

10. Every sale deed in respect of property worth more than

Rs. 100/- is compulsorily registerable under Section 54 of the

Transfer of Property Act. Thus, a sale deed executed by the

vendor becomes an instrument of sale only after it is registered.

The decision of the Constitution Bench only deals with the

question of when the sale is complete; it does not deal with the

issue of the date from which the sale deed would operate.

Section 47 of the Registration Act does not deal with the

completion of the sale; it only lays down the time from which a

registered document would operate.

11. Now, coming to the facts of this case, the consideration

was entirely paid on the date of the execution of the sale deed.

The sale deed was registered with the interpolation made about

the description/area of the property sold. The first defendant

admittedly made the said interpolation after it was executed

but before it was registered. In terms of Section 47 of the

Registration Act, a registered sale deed where entire

consideration is paid would operate from the date of its

execution. Thus, the sale deed as originally executed will

operate. The corrections unilaterally made by the first

defendant after the execution of the sale deed without the

knowledge and consent of the purchaser will have to be

ignored. Only if such changes would have been made with the

consent of the original plaintiff, the same could relate back to

the date of the execution. It is not even the first defendant's

case that the subsequent correction or interpolation was made

before its registration with the consent of the original plaintiff.

 CIVIL APPEAL NO. 9098 OF 2013 Page 8 of 8

Therefore, in this case, what will operate is the sale deed as it

existed when it was executed.

12. Therefore, we find no error in the view taken by the High

Court.

13. As held in the case of Satyender and Ors. v. Saroj and

Ors.2 , the second appeal in the present case will be governed

by Section 41 of the Punjab Courts Act, 1918. Under clause (a)

of sub-Section (1) of Section 41, a decision being contrary to

law is a ground for interference. The decision of the first

Appellate Court was contrary to Section 47 of the Registration

Act. The High Court was justified in interfering with the

decision of the first Appellate Court in a second appeal under

Section 41 of the Punjab Courts Act.

14. Accordingly, the appeal is dismissed with no order as to

costs.

……………………..J.

(Abhay S. Oka)

……………………..J.

(Pankaj Mithal)

New Delhi;

January 02, 2024

2 2022 SCC OnLine SC 1026

2023 INSC 789 - No evidence was brought before the arbitrator about ownership of any other land by the said Krishna Pal Singh or that no construction was raised on the plot in question. Accordingly, the order of the appellate court and the award were both set aside and it was held that the sale deed dated 14.07.1983 cannot be declared to be null and void.

No evidence was brought before the arbitrator about ownership of any other land by the said Krishna Pal Singh or that no construction was raised on the plot in question. Accordingly, the order of the appellate court and the award were both set aside and it was held that the sale deed dated 14.07.1983 cannot be declared to be null and void.

2023 INSC 789

1

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5380-5382 OF 2015

PURUSHOTTAM BAGH SAHKARI

AWAS SAMITI LTD. …APPELLANT

VERSUS

SRI SHOBHAN PAL SINGH AND ANR. ETC. …RESPONDENTS

J U D G M E N T

PANKAJ MITHAL, J.

1. The challenge in these appeals is to the common judgment and

order dated 17.07.2013 passed by the learned Single Judge of

the High Court allowing three writ petitions based on similar

and identical facts whereunder writ petition no.18933 of 2011

was treated as a leading case and the facts of the same were

narrated in the impugned order.

2. In view of the above, as the writ petition was decided on the

basis of the facts of one of the writ petitions, we also consider it

appropriate to narrate the facts of the same only while 

2

adjudicating upon the correctness of the judgment and order of

the writ court.

3. A society with the name Purushottam Bagh (residential) Sahkari

Awas Samiti Ltd., Dayal Bagh, Agra, was formed in accordance

with the provisions of the U.P. Cooperative Societies Act, 1965.

In the said society, late Krishna Pal Singh, the predecessor-ininterest of the present respondents was one of the members.

The said society developed a residential colony wherein a plot

No. B-1, measuring 933 sq. meters was allotted in favour of

Krishna Pal Singh and a sale deed in his favour was executed

on 14.07.1983. It may not be out of place to mention here that

under the bye-laws of the society, a residential plot could be

allotted to a member only if he lives or wishes to live in the area

of operation of the society provided he or his family member

does not own any building or plot in the area of operation of the

society. The ‘family’ of such a member under the bye-laws

means husband, wife and dependent minor children.

4. It appears that Krishna Pal Singh gave an undertaking on an

affidavit that he does not possess any building or plot in the 

3

area of operation of the society and probably in light of such an

undertaking, the aforesaid plot was allotted to him and the sale

deed was executed.

5. After about 26 years, the society vide order dated 19.03.2010

referred the matter to the sole arbitrator, i.e. cooperative officer

(resident) Agra with regard to the price of the land sold by sale

deed dated 14.07.1983. The society in its plaint alleged that

Krishna Pal Singh had a personal house wherein he resided and

that he does not require the plot in question and that he has

purchased the same from the society in order to sell it to third

party on higher rate. This plot of land was obtained by him by

furnishing a false affidavit. It was also alleged that Krishna Pal

Singh had not constructed a house or the boundary wall of the

said plot within the time permitted.

6. It is worth noting that the aforesaid Krishna Pal Singh died in

1992 and was succeeded by his two sons, Lt. Col. Upendra Pal

Singh and Shobhan Pal Singh, whose names were duly mutated

in the records of the society as the owners of the said plot on

the death of their father. The successors of Krishna Pal Singh 

4

contested the arbitration proceedings alleging that the reference

to the arbitrator was not maintainable as it does not fall within

the ambit of Section 70 of the U.P. Cooperative Societies Act,

1965. Their father had raised a boundary wall on the said plot

after the building plan was sanctioned by the society and that

they had deposited even the development charges with the

society. Their father never had any house or building within the

area of operation of the society. Therefore, the allotment and

the sale deed of the said plot was not liable to be cancelled.

7. Notwithstanding the maintainability of the reference to the

arbitrator or that the sale deed could not have been cancelled

by him, an Award was made on 12.08.2010 declaring the sale

deed dated 14.07.1983 to be null and void. The arbitrator

observed that when Krishna Pal Singh had purchased the said

plot, he had given his address of Kamla Nagar where even his

successors are residing till date, and that he had not raised any

construction over the said plot despite sanction of the building

plan. 

5

8. An appeal was preferred against the aforesaid Award and the

same too was dismissed vide order dated 24.02.2011.

9. In the background of the aforesaid facts and circumstances, the

successors of Krishna Pal Singh, assailed the Award dated

12.08.2010 and the appellate order dated 24.02.2011 declaring

the sale deed dated 14.07.1983 to be null and void by invoking

the writ jurisdiction of the High Court. The said writ petition

after contest was allowed vide judgment and order dated

17.07.2013 with the clear finding that the society had failed to

bring on record any material to prove that Krishna Pal Singh at

the time of the purchase of the property was residing in his own

house or that he was having any residential property in the area

of operation of the society. No evidence was brought before the

arbitrator about ownership of any other land by the said

Krishna Pal Singh or that no construction was raised on the plot

in question. Accordingly, the order of the appellate court and

the award were both set aside and it was held that the sale deed

dated 14.07.1983 cannot be declared to be null and void.

6

10. It is the aforesaid judgment and order of the writ court which

has been assailed by the society in these appeals.

11. The contention of Shri D.S. Naidu, learned Senior Counsel for

the society is that Krishna Pal Singh obtained the allotment and

the sale deed of the plot in question by submitting a wrong

affidavit that he does not own and possess any property in the

area of operation of the society which is in violation of clause

5(1) of the bye-laws of the society and that he failed to construct

anything on it within a reasonable time.

12. It would be appropriate for this Court to refer to clause 5(1) and

clause 3(10) of the bye-laws of the society so as to deal with the

submission made by the learned counsel on behalf of the

society. Clauses 5(1) and 3(10) of the bye-laws of the society

reads as under:

“Clause 5 (1)-

5. Subject to anything contrary contained

in the bye law or the regulations, a person

be entitled to become of the member of the

Society if he is of sound mind, bears good

character and above 18 years of age and

who

(1) Lives or wishes to live in the area of

operation of the society and who himself 

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or his family member does not own any

building or plot in the area of operation of

the society and who is not the member of

any other cooperative residential society

having its area of operation in the same

area. Those persons would also be

entitled whose land has been acquired by

the Society.

Clause 3(10)-

3(10) Family means husband, wife and

dependent/minor children”.

13. A simple reading of the aforesaid provision reveals that family

of a member of the society means husband, wife and dependent

minor children and that no member of the society is entitled to

allotment of any plot if he himself or his family member owns

any building or plot in the area of the operation of the society.

In view of the above, Krishna Pal Singh would not have been

entitled for allotment and purchase of any plot under the society

if he or his family members had any building or plot in the area

of operation of the society.

14. The appellant is alleging violation of the Bye Laws as aforesaid

therefore it is upon it to prove the same. In this context, the

writ court has returned a specific finding that the society had

failed to furnish any evidence before the arbitrator to 

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substantiate its allegation that the petitioners are having land

or a house in Agra and that Krishna Pal Singh or his successors

have violated any of the conditions of the sale deed or of the byelaws of the society.

15. For ready reference, the relevant finding of the writ court is

reproduced hereinbelow:

“The basic dispute raised in all the writ

petitions is, that the member has given a

false declaration and that the said member

owns another land or a residential house

in his or her name in the city of Agra. The

Court is constrained to observe that the

Society has failed to furnish any

documentary proof before the Arbitrator

with regard to this allegation against the

petitioners having a land or a house in his

or her name in Agra and has further failed

to file any evidence with regard to violation

of any of the conditions of the sale-deed or

of the bye-laws of the Society”.

16. It may also be pertinent to mention here that on perusal of the

Award of the arbitrator and the order of the appellate authority,

it is evident that the arbitrator had not recorded any finding that

Krishna Pal Singh had given a false affidavit or that he owned a

house or a plot in the area of operation of the society. The only

finding recorded by the arbitrator is that at the time of allotment 

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he had given his address to be F150 Kamla Nagar, Agra where

even now his successors are residing. However, such finding

falls short of saying that the address at which he was living was

a house which belonged to him or his family members as defined

under the bye-laws or that his successors are the owners of the

said house in their own capacity. Mere living in a particular

house by itself would not mean that the said house is under

ownership of the person living therein in his individual capacity

or even that it is within the area of operation of the society.

17. In the light of the aforesaid and the finding returned by the writ

court, we find no substance in the submission made on behalf

of the society and as such, in our opinion, the appeals lack merit

and are dismissed with no orders as to costs.

……………………….. J.

(ABHAY S. OKA)

……………………….. J.

(PANKAJ MITHAL)

NEW DELHI;

SEPTEMBER 04, 2023. 

When there is no alteration in the 8th standarad mark list - The identical allegation in both the proceedings was that the Appellant altered his date of birth from 21.04.1974 to 21.04.1972 in his 8th standard marksheet. Accordingly, we set aside the judgment of the D.B. Special Appeal (Writ) No.484/2011 dated 05.09.2018. We direct that the appellant shall be reinstated with all consequential benefits including seniority, notional promotions, fitment of salary and all other benefits. As far as backwages are concerned, we are inclined to award the appellant 50% of the backwages. The directions be complied with within a period of four weeks from today.

whether the date of birth of accused is 21.04.1972 or 21.04.1974. Exh. P-3 is original Marksheet, in which, the date of birth of accused has been shown as 21.04.1972 and same has also been proved by the witnesses examined on behalf of the prosecution. 

Whatever the documents have been produced before the Court regarding the date of birth of 21.04.1974 are either the letters of Principal or are Duplicate T.C. or Marksheets. Neither the prosecution has produced any such original documents in the Subordinate Court to this effect that when the admission form of accused was filled, what date of birth was mentioned by the accused in it, what was the date of birth in Roll Register of School, what date of birth was mentioned by accused in the Examination Form of Secondary, and nor after bringing the original records from the concerned witnesses, same were got proved in the evidence. 

In these circumstances, this fact becomes doubtful that date of birth of accused was 21.04.1974, and accused is entitled to receive it’s benefit. In the considered opinion of this Court, the conviction made by the Ld. Subordinate Court merely on the basis of oral evidences and letters or duplicate documents, is not just and proper. It is justifiable to acquit the accused.

 it is not the case of department that the appellant sought employment based on 10th standard marksheet. It is their positive case that the appellant sought employment on the basis of his 8th standard marksheet. Shravan Lal-PW-4 in the departmental enquiry had also furnished the 10th standard marksheet procured from the Secondary Education Board, Ajmer. 

In cross-examination, on being asked, he admitted that the appellant was recruited on the basis of 8th standard marksheet, and he admitted that there was no alteration in the 8th standard marksheet. 30. In view of the above, we declare that the order of termination dated 31.03.2004; the order of the Appellate Authority dated 08.10.2004; the orders dated 29.03.2008 and 25.06.2008 refusing to reconsider and review the penalty respectively, are all illegal and untenable.  

When there is no alteration in the 8th standarad mark list -  

The identical allegation in both the proceedings was that the Appellant altered his date of birth from 21.04.1974 to 21.04.1972 in his 8th standard marksheet.

Accordingly, we set aside the judgment of the D.B. Special Appeal (Writ) No.484/2011 dated 05.09.2018. We  direct that the appellant shall be reinstated with all consequential benefits including seniority, notional promotions, fitment of salary and all other benefits. As far as backwages are concerned, we are inclined to award the appellant 50% of the backwages. The directions be complied with within a period of four weeks from today.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7935 OF 2023

(Arising out of SLP (C) No. 33423 of 2018)

Ram Lal … Appellant (s)

Versus

State of Rajasthan & Ors. ...Respondent(s)

J U D G M E N T

K.V. Viswanathan, J.

1. Leave granted.

2. Ram Lal (the appellant) was a Constable with the

Rajasthan Armed Constabulary, 9th Battalion, Jodhpur. He

was appointed on 15.12.1991. A First Information Report

(F.I.R.) was registered on 02.09.2002 against him under

Sections 420, 467, 468 and 471 of the IPC. Soon thereafter,

1

on 02.04.2003, a chargesheet in a departmental enquiry was

also issued.

3. The identical allegation in both the proceedings was

that the Appellant altered his date of birth from 21.04.1974 to

21.04.1972 in his 8th standard marksheet. It was alleged that

this was done to project himself as having attained majority

at the time of the recruitment. The appellant denied the

charges.

4. Asked about the overwriting in the application, the

appellant stated that it was possible that in the application

form he might have written initially as 21.04.1974 and

thereafter corrected it to 21.04.1972. He however maintained

that his date of birth was 21.04.1972.

5. Five witnesses were examined in the departmental

proceeding. These very five witnesses were also examined in

the criminal trial, apart from eight other witnesses who were

also examined at the criminal trial. The Enquiry Officer in

the departmental proceeding found the charges proved and

2

the Disciplinary Authority, by an order of 31.03.2004,

dismissed the appellant from service. The Appellate

Authority also dismissed the appeal. Attempts to have the

order reviewed and the penalty reconsidered were also in

vain.

6. At the criminal trial, the trial Court convicted the

appellant for the offence under Section 420 of the IPC and

sentenced him to undergo three years’ imprisonment alongwith a fine of Rs.5,000/-. However, the Additional District

and Sessions Judge, Jodhpur [‘Appellate Judge’], vide

judgment dated 24.08.2007, allowed the criminal appeal and

acquitted the appellant.

7. The appellant, thereafter, represented for his

reinstatement. Subsequently, he filed a writ petition in

August, 2008 for quashing the dismissal order dated

31.03.2004, the order of the Appellate Authority, and the

orders refusing to review and reconsider the above-said

orders.

3

8. The learned Single Judge, by his judgment dated

13.08.2008, dismissed the writ petition by holding that the

standard of proof in a criminal proceeding and departmental

proceeding is different. The learned Single Judge found no

infirmity in the order of the Disciplinary Authority. The writ

appeal filed by the appellant has also been dismissed by

reiterating the findings of the learned Single Judge and by

further elucidating as to how the parameters for a judicial

review against an order in a departmental proceeding are

limited and circumscribed. Being aggrieved, the appellant is

in appeal before us.

Questions for consideration:

9. The following two questions arise for consideration:

a) Whether the dismissal of the appellant from service

pursuant to the departmental enquiry was justified?

b) On the facts of the case, what is the effect of the

acquittal, ordered by the Appellate Judge in the

4

criminal trial, on the order of dismissal passed in the

departmental enquiry?

10. We have heard Mr. Adarsh Priyadarshi, learned counsel

for the appellant and Mr. Vishal Meghwal, learned counsel

for the State. Learned counsels have reiterated their

contentions before the Courts below.

Legal Position:

11. We have examined both the questions independently.

We are conscious of the fact that a writ court’s power to

review the order of the Disciplinary Authority is very limited.

The scope of enquiry is only to examine whether the

decision-making process is legitimate. [See State Bank of

India vs. A.G.D. Reddy, 2023:INSC:766 = 2023 (11) Scale

530]. As part of that exercise, the courts exercising power of

judicial review are entitled to consider whether the findings

of the Disciplinary Authority have ignored material evidence

and if it so finds, courts are not powerless to interfere. [See

5

United Bank of India vs. Biswanath Bhattacharjee,

2022:INSC:117 = (2022) 13 SCC 329]

12. We are also conscious of the fact that mere acquittal by

a criminal court will not confer on the employee a right to

claim any benefit, including reinstatement. (See Deputy

Inspector General of Police and Another v. S. Samuthiram,

 (2013) 1 SCC 598).

13. However, if the charges in the departmental enquiry and

the criminal court are identical or similar, and if the evidence,

witnesses and circumstances are one and the same, then the

matter acquires a different dimension. If the court in judicial

review concludes that the acquittal in the criminal proceeding

was after full consideration of the prosecution evidence and

that the prosecution miserably failed to prove the charge, the

Court in judicial review can grant redress in certain

circumstances. The court will be entitled to exercise its

discretion and grant relief, if it concludes that allowing the

findings in the disciplinary proceedings to stand will be

6

unjust, unfair and oppressive. Each case will turn on its own

facts. [See G.M. Tank vs. State of Gujarat & Others, (2006)

5 SCC 446, State Bank of Hyderabad vs. P. Kata Rao,

(2008) 15 SCC 657 and S. Samuthiram (supra)]

Discussion:

Validity of the Disciplinary proceeding – Question No. 1:

14. A brief analysis of the facts of the case is essential. The

origin of this dispute, which does not inspire confidence at

all, is as follows. The appellant’s cousin Shravan Lal (PW-4

in the departmental enquiry and PW-6 in the criminal case),

deposed as under before the enquiry officer :-

"Stated on enquiry that about 13 months ago, I was

operating engine at Well. On that day at about 3.00 p.m.,

Ramlal after drinking liquor, came at well and switched

off the engine. Thereafter, Ramlal abused me and scuffled

with me and said that today I will operate the engine and

you cannot do anything to me. I have received job by

fooling the Government. When I enquired him that how

you did that, then, Ramlal told me that I have received job

by altering my date of birth as 21.04.1972 in my

marksheet, whereas, my date of birth was 21.04.1974.

7

Thereafter I went to school and enquired about this fact,

whereupon I came to know that his date of birth was

21.04.1974. Due to this reason, I produced an application

before the Superintendent of Police, Ajmer and made one

report to the Commandant, 9th Battalion, RAC, Tonk and

I also made one report to the Hon'ble Chief Minister and

one report to DIG, RAC, Rajasthan, Jaipur….."

An F.I.R. was registered on 02.09.2002. A charge-sheet in

the departmental proceeding was issued on 02.04.2003. It

will be relevant to extract the two charges in the disciplinary

proceedings:

"Charge No.1 :-

In the year 1991, an application for appointment on the

post of constable was made by you, alongwith which,

Marksheet of 8th pass issued by Government Secondary

School, Tiloniya (Ajmer), bearing Roll No. 323 and

Admission No. 2314, in which, your date of birth was

mentioned as 21.04.1974, but you by altering it to

21.04.1972, fraudulently got recruited on the post of

Constable.

Charge No.2:-

As a result of altering your date of birth from 21.04.1974

to 21.04.1972 in the Marksheet issued by the Government

Secondary School, Tiloniya (Ajmer), Crime No. 183/02

under Section 420, 467, 468, 471 IPC was registered

against you in P.S. Mandor, District -Jodhpur."

8

15. Five witnesses were examined in the departmental

enquiry, namely, PW-1 Jagdish Chand, Principal in

Government Secondary School, Village Tiloniya, PW-2

Bhawani Singh (constable who was tasked to bring the

school records), PW-3 Karan Sharma, who was Circle Officer

and had recorded the statement of Shravan Lal; PW-4

Shravan Lal and PW-5 Raj Singh who conducted the

investigation of the criminal case.

16. The evidence of PW-5/Raj Singh, as set out in the

enquiry report taken as it is, is significant since he clearly

disproved the charge. He stated the following in the crossexamination before the enquiry officer:

“Raj Singh you conducted investigation of Crime No. 102

and sent the copy to Commandant, 9th Battalion, RAC,

Tonk, what documents you sent alongwith the same - The

documents which were sent by me were copy of FIR,

copy of chargesheet which was submitted in the Court

and statements of witnesses recorded during the

investigation and documents; whose photocopies were

also given to the accused. Whether you had sent the

copies of statements recorded in the aforesaid case to the

Commandant - I did not send the copies to Commandant

Sahab. Which officer had submitted the chargesheet,

order of result in the Court – the then SHO of P.S.

9

Mandor, District - Jodhpur City namely Sh. Ram Pratap

submitted result of investigation, order and chargesheet

against the accused, in the Court.”

During the investigation, you had recorded statements of

Dharmendra Kumar Jatav and Jairam Gurjar, did you

record more statements and whether you would identify

the copies of those statements - Yes, I recorded the

statement of witnesses as it is. And I am producing

herewith the statements of both the aforesaid witnesses.

Whether those have been written by yourself - Yes, those

statements have been written by me, which are Exh. D-1

and Exh. D-2. In Exh. D-1, I recorded statement of

Teacher namely Rakishan Dev Murari on A to B part and

I filled the marksheet of Ramlal, wherein, date of birth of

Ramlal is mentioned as 21.04.1972 in C to D part, which

has been written as per the dictation of Checking Teacher

Ramkishan Dev Murari. Date of birth of 21.07.1972

mentioned on E to F part, was not mentioned in deliberate

manner, in fact, same has been written due to the human

error, whether you are agree with this statement - This

statement is correct, whereas, at the time of filling up

form for recruitment in Police RAC, Ramlal could

enclose T.C. of 9th Pass, and he was studying in 10th

class."

Thereafter, referring to the Exh. D-2 [Statement of Jairam

Gurjar], he deposed as under:-

"Similarly, in Exh. D-2, on A to· B part, you have shown

me the photocopy of 8th class marksheet of Ramlal S/o

Sh. Tejuram Chaudhary, R/o Tiloniya, on which,

signatures of it's issuer i.e. Teacher namely Sh.

Dharmendra Kumar, Ramkishan Dev Murari and

10

Headmaster Sh. Vishnu Miyani are mentioned. I am

acquainted with their signatures."

17. Most importantly dealing with the 8th class marksheet

of the appellant, which formed the basis for his application

seeking appointment as Constable, PW-5/Raj Singh stated as

under:-

"The 8th class marksheet of Ramlal enclosed in the

documents, which is Exh. P-3, (sic) in which, whether

any alteration has been found in the date of birth

anywhere, and whether date of birth has been mentioned

as 21.04.1972 therein - Yes, no alteration has been made

in the marksheet of 8th class and date of birth is

21.04.1972."

18. It is very clear from the above that no alteration was

found in the Appellant’s 8th class marksheet (which forms

part of the enclosed documents sent to the Commandant) and

the date of birth mentioned on it was 21.04.1972. Reference

to ‘P-3’ in the above extract appears to be a mistake. The

chargesheet and documents enclosed were Ex. P-12/1 to P12/12. The defence also exhibited the original 8th class

11

marksheet separately as Exh. D-3, as is clear from the chart

of Exhibits set out in the enquiry report.

19. The Enquiry Officer, after setting out the depositions of

the witnesses, set out the chart of the “P” series Exhibits and

the Exhibits of the delinquent, namely the “D” series, and

without any further discussion or marshaling of the evidence

recorded the following with regard to charge-1:

“On perusal of statement of witnesses namely PW-1 PW2, PW-3, PW-4, PW-5 and Exh. P-1 to P-12, it is clear

that correct date of birth of delinquent constable was

21.04.1974. When, delinquent constable submitted

application for recruitment on the post of Constable, at

that time, he did not complete the age of 18 years,

therefore, due to the apprehension of rejection of his

application due to the less age, delinquent constable has

altered his date of birth as 21.04.1972 from 21.04.1974,

therefore, Charge No.1 stands proved.

Delinquent Constable has also passed 10th class, whose

marksheet is Exh. P-4, in which, his date of birth is

mentioned as 21.04.1974.”

In so far as charge-2 was concerned, it was merely

noticed that challan had been filed in the criminal case as on

12

28.02.2004, the date of enquiry report, and that the trial had

not concluded.

20. In the operative part of the enquiry report under the

head, ‘conclusions’, there is no reference to the 8th class

marksheet, (which was part of the enclosed documents sent

by Constable Raj Singh with the chargesheet) or to Exh.D-3

[the original 8th class marksheet] exhibited by the defence.

There is also no reference to the statement of Raj Singh PW-5

in the enquiry, who had acknowledged that there was no

alteration in the marksheet of the 8th class. What is referred

to in the chart of exhibits are letter of Jagdish Chand (Ex.P1);

the duplicate marksheet of 8th class issued by Jagdish Chand

(Ex.P2); the statement of Shravan Lal (Ex-P3); 10th class

marksheet of Secondary Education Board Rajasthan, Ajmer,

(Ex.P4); preliminary enquiry dated 16.10.2002 by Circle

Officer, Kishangarh (Ex.P5); FIR No. 183/2000, (Ex.P6);

application submitted by Ram Lal for recruitment to the post

of constable (Ex.P-7); letter of appointment dated 08.11.1991

13

(ExP-8); verification letter filed by Ramlal (Ex.P9);

appointment order dated 16.12.1991, (Ex-P-10); letter of

Government School Tiloniya, Ex.P-11; and chargesheet dated

24.04.2003, Ex.P-12.

21. It is very clear that relevant and material evidence

being, the deposition of PW-5/Raj Singh; the marksheet of 8th

class of the appellant [enclosed to the chargesheet] and the

original marksheet independently marked as Ex. D3 by the

defence have been completely left out in the discussion and

consideration. Inference has been drawn about the proof of

the charges by ignoring crucial, relevant and material

evidence which had come on record. The evidence of PW-5

Raj Singh and the marksheet enclosed in the documents

annexed to the chargesheet and the original marksheet

marked as Ex. D-3, were materials having a direct bearing on

the charge. The Disciplinary Authority has merely reiterated

the reasoning in the enquiry report. Equally so are the

findings of the appellate authority. It is well settled that if the

14

findings of the disciplinary authorities are arrived at after

ignoring the relevant material the court in judicial review can

interfere. It is only to satisfy ourselves to this extent, that we

have scrutinized the material to see as to what was reflected

in the record. We are satisfied that the disciplinary

proceedings are vitiated and deserves to be quashed.

22. In this scenario, we are inclined to accept the

explanation given by the appellant that overwriting in the

application form was only due to correction of an inadvertent

error. As long as the original 8th standard marksheet reflected

his date of birth as 21.04.1972 and there is no correction or

manipulation in that document, the appellant cannot be

penalised.

Effect of Acquittal in the Criminal Proceeding – Question

No. 2:

23. With this above background, if we examine the criminal

proceedings the following factual position emerges. The very

same witnesses, who were examined in the departmental

15

enquiry were examined in the criminal trial. Jagdish

Chandra, Bhawani Singh, Shravan Lal, Raj Singh and Karan

Sharma were examined as PW2, PW3, PW6, PW9 and PW13

respectively at the criminal trial. Apart from them, eight other

witnesses were also examined. The gravamen of the charge in

the criminal case was that the appellant had submitted an

application for recruitment along with his marksheet and he,

by making alteration in his date of birth to reflect the same as

24.04.1972 in place of 21.04.1974, and obtained recruitment

to the post of Constable. Though the Trial Court convicted

the appellant under Section 420 of IPC, the Appellate Court

recorded the following crucial findings while acquitting the

appellant:

“….Mainly the present case was based on the documents

to this effect whether the date of birth of accused is

21.04.1972 or 21.04.1974. Exh. P-3 is original

Marksheet, in which, the date of birth of accused has been

shown as 21.04.1972 and same has also been proved by

the witnesses examined on behalf of the prosecution.

Whatever the documents have been produced before the

Court regarding the date of birth of 21.04.1974 are either

the letters of Principal or are Duplicate T.C. or

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Marksheets. Neither the prosecution has produced any

such original documents in the Subordinate Court to this

effect that when the admission form of accused was

filled, what date of birth was mentioned by the accused in

it, what was the date of birth in Roll Register of School,

what date of birth was mentioned by accused in the

Examination Form of Secondary, and nor after bringing

the original records from the concerned witnesses, same

were got proved in the evidence. In these circumstances,

this fact becomes doubtful that date of birth of accused

was 21.04.1974, and accused is entitled to receive it’s

benefit. In the considered opinion of this Court, the

conviction made by the Ld. Subordinate Court merely on

the basis of oral evidences and letters or duplicate

documents, is not just and proper. It is justifiable to acquit

the accused.

Resultantly, on the basis of aforesaid consideration, the

present appeal filed by the Appellant/Accused is liable to

be allowed.”

 [Emphasis supplied]

24. What is important to notice is that the Appellate Judge

has clearly recorded that in the document Exh. P-3 – original

marksheet of the 8th standard, the date of birth was clearly

shown as 21.04.1972 and the other documents produced by

the prosecution were either letters or a duplicate marksheet.

No doubt, the Appellate Judge says that it becomes doubtful

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whether the date of birth was 21.04.1974 and that the accused

was entitled to receive its benefit. However, what we are

supposed to see is the substance of the judgment. A reading

of the entire judgment clearly indicates that the appellant was

acquitted after full consideration of the prosecution evidence

and after noticing that the prosecution has miserably failed to

prove the charge [ See S. Samuthiram (Supra).]

25. Expressions like “benefit of doubt” and “honorably

acquitted”, used in judgments are not to be understood as

magic incantations. A court of law will not be carried away

by the mere use of such terminology. In the present case, the

Appellate Judge has recorded that Exh. P-3, the original

marksheet carries the date of birth as 21.04.1972 and the

same has also been proved by the witnesses examined on

behalf of the prosecution. The conclusion that the acquittal

in the criminal proceeding was after full consideration of the

prosecution evidence and that the prosecution miserably

failed to prove the charge can only be arrived at after a

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reading of the judgment in its entirety. The court in judicial

review is obliged to examine the substance of the judgment

and not go by the form of expression used.

26. We are satisfied that the findings of the appellate judge

in the criminal case clearly indicate that the charge against

the appellant was not just, “not proved” - in fact the charge

even stood “disproved” by the very prosecution evidence. As

held by this Court, a fact is said to be “disproved” when, after

considering the matters before it, the court either believes

that it does not exist or considers its non-existence so

probable that a prudent man ought, under the circumstances

of the particular case, to act upon the supposition that it does

not exist. A fact is said to be “not proved” when it is neither

“proved” nor “disproved” [See Vijayee Singh and Others v.

State of U.P. (1990) 3 SCC 190].

27. We are additionally satisfied that in the teeth of the

finding of the appellate Judge, the disciplinary proceedings

and the orders passed thereon cannot be allowed to stand.

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The charges were not just similar but identical and the

evidence, witnesses and circumstances were all the same.

This is a case where in exercise of our discretion, we quash

the orders of the disciplinary authority and the appellate

authority as allowing them to stand will be unjust, unfair and

oppressive. This case is very similar to the situation that

arose in G.M. Tank (supra).

28. Apart from the above, one other aspect is to be noted.

The Enquiry Officer’s report makes a reference to the

appellant passing 10th standard, and to a 10th standard

marksheet exhibited as Exh. P-4 referring to the date of birth

as 24.07.1974. Jagdish Chandra-PW1 (in the departmental

enquiry) clearly deposed that since the appellant was

regularly absent from Class 10, his name was struck off and

he did not even pass 10th standard. The appellant has also

come out with this version before the disciplinary authority,

stating that the 10th class certificate of Ram Lal produced

before the Enquiry Officer, is of some other Ram Lal.

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29. This issue need not detain us any further because it is

not the case of department that the appellant sought

employment based on 10th standard marksheet. It is their

positive case that the appellant sought employment on the

basis of his 8th standard marksheet. Shravan Lal-PW-4 in the

departmental enquiry had also furnished the 10th standard

marksheet procured from the Secondary Education Board,

Ajmer. In cross-examination, on being asked, he admitted

that the appellant was recruited on the basis of 8th standard

marksheet, and he admitted that there was no alteration in the

8th standard marksheet.

30. In view of the above, we declare that the order of

termination dated 31.03.2004; the order of the Appellate

Authority dated 08.10.2004; the orders dated 29.03.2008 and

25.06.2008 refusing to reconsider and review the penalty

respectively, are all illegal and untenable.

31. Accordingly, we set aside the judgment of the D.B.

Special Appeal (Writ) No.484/2011 dated 05.09.2018. We

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direct that the appellant shall be reinstated with all

consequential benefits including seniority, notional

promotions, fitment of salary and all other benefits. As far as

backwages are concerned, we are inclined to award the

appellant 50% of the backwages. The directions be complied

with within a period of four weeks from today.

32. The appeal is allowed in the above terms. No order as

to costs.

…..…………………J.

(J.K. Maheshwari)

…..…………………J.

(K.V. Viswanathan)

New Delhi;

December 04, 2023.

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