Section 58 and 59 provides for two different mechanisms for adoption. As per Section 59(1), if an orphan or abandoned or surrendered child could not be placed with an Indian or non-resident Indian prospective adoptive parents despite the joint effort of the Specialised Adoption Agency and State Agency within sixty days from the date the child has been declared legally free for adoption, such child shall be free for inter-country adoption. Thus, sixty days period has to be elapsed from the date when the child has been declared legally free for adoption. In the present case, child was declared free for adoption on 14.12.2017 by Child Welfare Committee, Patna, Bihar. Before expiry of sixty days, child could not have been offered for adoption to parents, who are 22 eligible for adoption under Section 59. We are, however, not oblivious to the fact that respondent Nos.1 and 2 had been bonafide pursuing their applications for adoption, initially as resident Indians and thereafter even as overseas citizens of India. As per Section 57, both the respondent Nos.1 and 2 are fully eligible and competent to adopt the child. It was under the circumstances as noticed above that the child Shomya was offered to respondent Nos.1 and 2, who rightly communicated their acceptance and communicated with the child and are willing to take child in adoption and to take all care and provide good education to her. We have no doubt in the bonafide or the competence of respondent Nos.1 and 2 in their effort to take the child in adoption, but the statutory procedure and the statutory regime, which is prevalent as on date and is equally applicable to all aspirants, i.e., Indian prospective adoptive parents and prospective adoptive parents for inter-country adoption, cannot be lost sight. However, by virtue of Section 59(2), the respondent Nos.1 and 2 can at best may be given priority in inter-country adoption, they being 23 eligible overseas citizens of India and further due to consequences of events and facts as noticed above.

Hon'ble Mr. Justice Ashok Bhushan
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2017-2020 OF 2019
(arising out of S.L.P.(C) Nos.1476-1479 of 2019)
UNION OF INDIA & ANR. ETC. ...APPELLANTS
Vs.
ANKUR GUPTA & ORS. ...RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
Leave granted.
2. The contesting respondent Nos. 1 and 2 having
appeared through caveat, we have heard counsel for
the parties and proceed to decide the matter finally.
3. Union of India and Central Adoption and Resources
Agency, Ministry of Women & Child Development is in
appeal questioning the Division Bench judgment dated
04.09.2018 in Writ Appeal No. 2259 of 2018 and Writ
Appeal No.2675 of 2018. Two other appeals have been
filed by two other appellants questioning a common
1
order dated 04.09.2018 passed by the High Court in
C.C.C. No. 1690 of 2018 and C.C.C. No. 1691 of 2018.
4. We first take the Civil Appeal filed against the
Division Bench judgment in Writ Appeal No.2259 of
2018 and Writ Appeal No.2675 of 2018. The brief
facts giving rise to the appeal as has been noted by
the Division Bench of the High Court are to the
following effect:-
4.1 That after completing his studies from the
Indian Institute of Technology and India
Institute of Management, Ahmedabad, in the
year 2000, Mr. Ankur Gupta, the respondent
No.1 migrated to United State of America (USA
for short). In 2004, Ms. Geetika Agarwal, the
respondent No.2 went to USA for her Ph.D.
During their stay in USA in June, 2006, the
respondent Nos. 1 and 2 got married. They
stayed in USA for a decade. They returned to
India in 2016. While staying in USA, the
respondent No.2 became an American Citizen;
the respondent No.1 applied for American
citizenship. However, till 2016, when the
2
couple returned to India, the respondent No.1
was not given the American Citizenship.
Moreover, even after ten years of marriage,
the couple was not blessed with any children.
Therefore, upon their return to India, they
eventually planned to adopt an Indian child.
4.2 The respondent Nos.1 and 2 submitted an
Application on 19.07.2016 through Central
Adoption Resource Information and Guidance
System (CARINGS) to adopt a child as Indian
Prospective Adoptive Parents. Just before
submitting the application for adoption
respondent No.2 had acquired the citizenship
of USA on 19.05.2016 which had been declared
as such in application submitted on
19.07.2016.
4.3 According to the Guideline, 2015, a Home
Study Report has to be prepared by a
Specialized Adoption Agency in order to
coordinate the efforts of a ‘Prospective
adoptive parents’ to adopt a child. On
01.08.2016, Shishu Mandir Agency, a
3
registered Specialized Adoption Agency, filed
its Home Study Report. Thereafter, the
respondents were in queue awaiting referral
of a child for adoption. On 05.12.2016,
during the time they were waiting for
referral of a child for adoption, the
respondent No.1 was granted the U.S.
Citizenship on 05.12.2016.
4.4 According to the respondents, on the basis of
the advice received by them, they informed
CARA, the appellant No.2 about the change in
citizenship status of respondent No.1.
Moreover, on 05.11.2017, the couple
registered themselves as Overseas Citizens of
India (OCI) residing in India. The said
registration was made under the Adoption
Regulations, 2017 (Regulations, 2017, for
short), which was notified on 4th January 2017
in supersession of the Guidelines Governing
Adoption of Children, 2015.
4
4.5 Since the respondents had informed the
Specialised Adoption Agency about the change
in their citizenship status, the Specialized
Agency informed the appellant No.2, through
e-mail dated 05.12.2017, about the change of
citizenship status of the respondents. The
Specialised Adoption Agency referred to the
respondents’ second registration, namely,
CUSA201771205. On behalf of the respondents,
the Specialised Adoption Agency requested the
appellants that the respondent’s seniority
for adoption of a child should be continued
on the basis of the first registration.
4.6 By e-mail dated 06.12.2017, the appellant
No.2 informed the Specialised Adoption Agency
that the request for continuing the seniority
of the couple would be considered with the
approval of the competent authority. However,
the eligibility of the couple for adoption
would be in the category of “OCI living in
India”.
5
4.7 On 01.01.2018, Baby Shomya (born on
30.09.2017) was referred by the respondent
No.3 for adoption by the respondent Nos. 1 &
2. The respondent Nos. 1 & 2 accepted the
referral on 02.01.2018. The respondent Nos. 1
& 2 visited Baby Shomya, who was with the
respondent No.3 at Patna. Therefore, on
04.01.2018, the respondent Nos.1 & 2 wrote to
the CEO of the appellant No.2 requesting for
continual of the reference of Baby Shomya for
adoption. The respondent Nos.1 & 2, who
apprehended that the referral of Baby Shomya
for adoption would expire on 18.01.2018,
repeatedly corresponded with the appellants
as a follow-up for completing the adoption of
Baby Shomya. Again, in the month of March
2018, the respondent nos. 1 & 2 visited Baby
Shomya. During this visit, they were informed
that in a High-Level Committee Meeting on
27.02.2018, their request for permission to
continue the first application dated
19.07.2016, as Indians living in India
Prospective Adoptive Parents, was declared as
6
invalid, because the respondent No.1 had also
been given US citizenship. They were further
informed that they will, instead, have to
wait for a referral of another child as
‘Overseas Citizen of India’.
4.8 Therefore, the respondent Nos. 1 and 2 filed
writ petition, namely, W.P. Nos. 12427-428 of
2018, impugning the aforesaid decision, which
was communicated to them over an e-mail dated
15.03.2018. The Writ Court allowed the writ
petitions by order dated 19.06.2018. The writ
Court quashed the aforesaid decision
communicated vide the e-mail dated
15.03.2018. Further, the High Court directed
the appellants to consider and examine the
request of the respondent Nos.1 & 2 on the
basis of their first application dated
19.07.2016 expeditiously, but within 15 days
from the date of receipt of this order.
4.9 The learned Single Judge vide its judgment
and order dated 19.06.2018 allowed the writ
petitions by passing following order:-
7
 “ORDER
(1) Writ petitions are hereby
allowed.
(2) Communication dated 15.03.2018-
Annexure-Z is hereby quashed.
(3) Writ of mandamus is issued to
respondents to consider and
examine the application submitted
by petitioners on the strength
and basis of the application
dated 19.07.2016 – AnnexureA/Annexure-R-2 expeditiously, at
any rate, within 15 days from the
date of receipt of this order, by
keeping in mind the observations
made herein above. “
4.10 Union of India and Central Adoption Resources
Agency, Ministry of Women & Child Development
filed Writ Appeal No. 2259 of 2018 and Writ
Appeal No. 2675 of 2018 against the judgment.
Two Contempt Applications being C.C.C. Nos.
1690-1691 of 2018 were also filed by
respondent Nos. 1 and 2, which were also
considered and decided by Division Bench of
High Court vide its judgment dated
04.09.2018. The Division Bench of the High
Court vide its judgment dated 04.09.2018
dismissed the writ appeals. The Division
Bench affirmed the order of the learned
8
Single Judge. While dismissing the writ
appeals, the contempt petitions were also
closed. It is useful to extract paragraph
Nos. 30 and 31 of the judgment, which is
relevant for the present case:-
“30. For the aforesaid reasons,
this Court is of the considered
opinion that the Writ Court has
rightly concluded that the
appellants were not justified in
denying the benefit of referral of
the child, Baby Shomya, for
adoption by the respondent Nos.1
and 2, and that no grounds are made
out for interference with the
exercise of extraordinary
jurisdiction by the Writ Court
under Article 226 of the
Constitution of India in the
peculiar facts and circumstances
that congeal into exceptional
circumstances. Therefore, the Writ
appeal is rejected and
consequentially, the pending
applications are also disposed of.
The appellants are directed to
implement the directions of the
Writ Court within a period of four
weeks from the date of receipt of
the certified copy of this order.
31. In view of the dismissal of
the writ appeal, and the further
direction to the appellants to
implement the directions of the
Writ Court within the further
period as stated above, the
contempt proceeding is closed.”
9
4.11 The appellants aggrieved by the said judgment
have filed these appeals.
5. Shri Aman Lekhi, learned ASG appearing for the
appellants submits that High Court, both learned
Single Judge and Division Bench erred in not
correctly construing the provisions of Sections 57,
58 and 59 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 as well as the
Adoption Regulations, 2017. It is submitted that the
respondent No.1 after submitting first application on
19.07.2016 for in country adoption having acquired US
citizenship on 06.12.2016 went outside the zone of in
country adoption. It is submitted that the second
application was submitted by the respondents on
05.11.2017 for inter country adoption but in that
second application, the respondents have given their
different identity and mobile numbers. It is
submitted that the respondent having gone out of zone
of consideration for in country adoption, their
application cannot be directed to be considered on
the basis of seniority for in country adoption. It
is submitted that there are more than 22,000 parents
waiting, according to seniority, for in country
10
adoption, respondents cannot stroll march over them.
It is submitted that offer to adopt Shomya, which was
sent on 01.01.2018 was on the basis of first
application of the respondents and after the
respondents informed in writing on 04.01.2018 about
their second registration dated 05.11.2017, the
communication was sent to the respondents that
decision regarding their seniority will be taken by
the competent authority. The communication was sent
on 15.03.2018 to the respondents that they cannot be
given the benefit of their seniority on the basis of
their first application and they have to wait for
receiving an offer as overseas citizen of India. It
is submitted that there were no special circumstances
on the basis of which any exception can be made in
favour of the respondents as has been directed by the
High Court.
6. Learned counsel appearing for the respondents
submits that the Act, 2015 and the Regulations, 2017
do not provide for any mechanism when Indian parents,
who have already got themselves registered for
adoption acquires the foreign citizenship. It is
submitted that as per Regulation 41 of the
11
Regulations, 2017, a common seniority list is
contemplated, which means that respondents shall
retain their seniority position on the basis of first
application. Thus, offer to adopt Shomya to the
respondents cannot be faulted. It is submitted that
respondent Nos.1 and 2 being fully competent for
applying for adoption, who are still qualified and
economically stable and eager to adopt the child
cannot be denied their right merely because the
respondent No.1 was conferred the US citizenship on
06.12.2016, i.e., much after submission of their
first application as Indian parent.
7. It is submitted that even though respondent Nos.1
and 2 have been conferred US citizenship, both are
residing in Bangalore, India and in both the
applications, their residence is shown as India,
hence in peculiar circumstances, they have rightly
been offered child Shomya for adoption. It is
submitted that the respondent Nos. 1 and 2 bonafide
has not concealed any information and has bonafide
submitted their application on 05.11.2017 as Overseas
Citizen of India and the fact that immediately when
they received offer for adoption of Shomya on
12
02.01.2018, on 04.01.2018, they sent an e-mail giving
details of both the applications. The respondents
have been bonafide pursuing their claim for adoption,
they having not been blessed with a child even though
after happy marital life of more than ten years. It
is submitted that the High Court has rightly held
that present case can be considered as an exceptional
case and without making it a precedent, the adoption
in favour of the respondents be allowed to maintain.
8. We have considered the submissions of the learned
counsel for the parties and have perused the records.
9. The 2015 Act, Chapter VIII deals with adoption.
Section 56 sub-section (1) provides that adoption
shall be resorted to for ensuring right to family for
the orphan, abandoned and surrendered children, as
per the provisions of the Act, the rules made
thereunder and the adoption regulations framed by the
authority. Section 57 deals with eligibility of
prospective adoptive parents, which is as follows:-
57. Eligibility of prospective adoptive
parents.--(1) The prospective adoptive
parents shall be physically fit,
financially sound, mentally alert and
highly motivated to adopt a child for
providing a good upbringing to him.
13
(2) In case of a couple, the consent of
both the spouses for the adoption shall be
required.
(3) A single or divorced person can also
adopt, subject to fulfilment of the
criteria and in accordance with the
provisions of adoption regulations framed
by the Authority.
(4) A single male is not eligible to adopt
a girl child.
(5) Any other criteria that may be
specified in the adoption regulations
framed by the Authority
10. Section 58 deals with procedure for adoption by
Indian prospective adoptive parents living in India,
which is to the following effect:-
58. Procedure for adoption by Indian
prospective adoptive parents living in
India.--(1) Indian prospective adoptive
parents living in India, irrespective of
their religion, if interested to adopt an
orphan or abandoned or surrendered child,
may apply for the same to a Specialised
Adoption Agency, in the manner as provided
in the adoption regulations framed by the
Authority.
(2) The Specialised Adoption Agency shall
prepare the home study report of the
prospective adoptive parents and upon
finding them eligible, will refer a child
declared legally free for adoption to them
along with the child study report and
medical report of the child, in the manner
as provided in the adoption regulations
framed by the Authority.
14
(3) On the receipt of the acceptance of the
child from the prospective adoptive parents
along with the child study report and
medical report of the child signed by such
parents, the Specialised Adoption Agency
shall give the child in pre-adoption foster
care and file an application in the court
for obtaining the adoption order, in the
manner as provided in the adoption
regulations framed by the Authority.
(4) On the receipt of a certified copy of
the court order, the Specialised Adoption
Agency shall send immediately the same to
the prospective adoptive parents.
(5) The progress and well-being of the
child in the adoptive family shall be
followed up and ascertained in the manner
as provided in the adoption regulations
framed by the Authority.
11. The next provision, which needs to be noticed is
Section 59, which provides for procedure for intercountry adoption of an orphan or abandoned or
surrendered child, which is as follows:-
59. Procedure for inter-country adoption
of an orphan or abandoned or surrendered
child.--(1) If an orphan or abandoned or
surrendered child could not be placed with
an Indian or non-resident Indian
prospective adoptive parent despite the
joint effort of the Specialised Adoption
Agency and State Agency within sixty days
from the date the child has been declared
legally free for adoption, such child shall
be free for inter-country adoption:
Provided that children with physical and
mental disability, siblings and children
above five years of age may be given
15
preference over other children for such
inter-country adoption, in accordance with
the adoption regulations, as may be framed
by the Authority.
(2) An eligible non-resident Indian or
overseas citizen of India or persons of
Indian origin shall be given priority in
inter-country adoption of Indian children.
(3) A non-resident Indian or overseas
citizen of India, or person of Indian
origin or a foreigner, who are prospective
adoptive parents living abroad,
irrespective of their religion, if
interested to adopt an orphan or abandoned
or surrendered child from India, may apply
for the same to an authorised foreign
adoption agency, or Central Authority or a
concerned Government department in their
country of habitual residence, as the case
may be, in the manner as provided in the
adoption regulations framed by the
Authority.
(4) The authorised foreign adoption agency,
or Central Authority, or a concerned
Government department, as the case may be,
shall prepare the home study report of such
prospective adoptive parents and upon
finding them eligible, will sponsor their
application to Authority for adoption of a
child from India, in the manner as provided
in the adoption regulations framed by the
Authority.
(5) On the receipt of the application of
such prospective adoptive parents, the
Authority shall examine and if it finds the
applicants suitable, then, it will refer
the application to one of the Specialised
Adoption Agencies, where children legally
free for adoption are available.
16
(6) The Specialised Adoption Agency will
match a child with such prospective
adoptive parents and send the child study
report and medical report of the child to
such parents, who in turn may accept the
child and return the child study and
medical report duly signed by them to the
said agency.
(7) On receipt of the acceptance of the
child from the prospective adoptive
parents, the Specialised Adoption Agency
shall file an application in the court for
obtaining the adoption order, in the manner
as provided in the adoption regulations
framed by the Authority.
(8) On the receipt of a certified copy of
the court order, the specialised adoption
agency shall send immediately the same to
Authority, State Agency and to the
prospective adoptive parents, and obtain a
passport for the child.
(9) The Authority shall intimate about the
adoption to the immigration authorities of
India and the receiving country of the
child.
(10) The prospective adoptive parents shall
receive the child in person from the
specialised adoption agency as soon as the
passport and visa are issued to the child.
(11) The authorised foreign adoption
agency, or Central Authority, or the
concerned Government department, as the
case may be, shall ensure the submission of
progress reports about the child in the
adoptive family and will be responsible for
making alternative arrangement in the case
of any disruption, in consultation with
Authority and concerned Indian diplomatic
mission, in the manner as provided in the
17
adoption regulations framed by the
Authority.
(12) A foreigner or a person of Indian
origin or an overseas citizen of India, who
has habitual residence in India, if
interested to adopt a child from India, may
apply to Authority for the same along with
a no objection certificate from the
diplomatic mission of his country in India,
for further necessary actions as provided
in the adoption regulations framed by the
Authority
12. The respondent Nos.1 and 2 submitted their
application as prospective adoptive parents living in
India. Although, on the date of submission of
application, respondent No.2 was already a US
citizen, the respondent No.1 being Indian citizen,
the application was fully maintainable as per the
provisions of Regulations and as per the guidelines
applicable at the relevant time as Indian prospective
adoptive parents. Even Regulation 21(1) of
Regulations, 2017 provides that if one of the
prospective adoptive parents is foreigner and other
is an Indian, such case shall be treated at par with
Indians living in India. After the respondent No.1
acquired the US citizenship on 06.12.2016 and OCI
card was issued to respondent No.1 on 27.04.2017,
18
second application was submitted on 05.11.2017 by the
respondents for inter-country adoption both having
become US citizens. In view of the fact that both
had become US citizens by 06.12.2016, they were not
eligible for adoption as Indian prospective adoptive
parents living in India. Mere fact that Act or
Regulations does not provide for any mechanism to
upload any further information in first registration
cannot alter the legal position and consequences of
acquiring the foreign citizenship by an Indian. The
consequences of obtaining US citizenship of
respondent Nos.1 and 2 shall take its effect
immediately.

13. The submission of learned counsel for the
respondents that Regulation 41 deals with common
seniority list also need to be noted. Regulation 41
of the Regulations, 2017 is as follows:-
41. Seniority of the prospective adoptive
parents.- (1) The prospective adoptive
parents shall be referred children on the
basis of a single seniority list, which
shall be maintained from the date of
registration and other criteria as
stipulated under these regulations.
(2) The seniority of resident Indians shall
be based on the date of online registration
and submission of the documents, except for
19
Home Study Report, in Child Adoption
Resource Information and Guidance System.
(3) The seniority of Non Resident Indian or
Overseas Citizen of India or foreign
prospective adoptive parents shall be based
on the date of online registration and
submission of the requisite documents
alongwith Home Study Report in Child
Adoption Resource Information and Guidance
System.
(4) Prospective adoptive parents shall be
allowed to change the State preference once
within sixty days from the date of
registration and in case they change the
State preference after sixty days from the
date of registration, they shall be placed
at the bottom of the seniority list in the
changed State.
(5) Seniority of prospective adoptive
parents registered as single, but married
later shall be counted from the date of
registration as single after receipt of
fresh Home Study Report.
(6) Prospective adoptive parents registered
for normal child, shall be able to adopt a
special need child or hard to place child
with the same registration.
14. It is also submitted that prior to Regulations,
2017, there were two separate seniority lists, which
were maintained under the Guidelines, 2015, which has
been now made a single seniority list. Even if there
is a single seniority list, now contemplated by
Regulation 41, a placement in the seniority list with
20
regard to resident Indian and non-resident Indian or
overseas citizen of India are based on different
yardsticks as provided in Regulations 41(2) and
41(3). Even if the common seniority list has to be
utilised for the purpose of in country adoption and
inter-country adoption as per the respective
categories, the difference between in country
adoption and inter-country adoption cannot be lost
sight or given a go bye by the mere fact that a
common seniority list is maintained. It is true that
Regulation 41 or any other Regulation does not
contemplate a situation when a resident Indian after
acquiring the foreign citizenship submits a fresh
registration, what is the consequence and value of
its first registration. Even though regulations are
silent and do not provide for any mechanism or any
answer to such fact situation, the natural
consequences of acquiring foreign citizenship shall
follow. We, thus, find force in the submission of
the learned ASG that the right of respondent Nos. 1
and 2 for adoption as resident Indian is lost after
respondent No.1 having acquired the US citizenship on
06.12.2016. Offer of the child to the respondent
21
Nos. 1 and 2 was based on their first application
dated 19.07.2016, in which if the clause of foreign
citizenship is ignored, was in accordance with the
Act and the Rules. Further, whether the factum of
respondent No.1 acquiring US citizenship on
06.12.2016 should be ignored for the purposes of
adoption or not is the question, which is required to
be addressed and answered in these appeals.
15. Section 58 and 59 provides for two different
mechanisms for adoption. As per Section 59(1), if an
orphan or abandoned or surrendered child could not be
placed with an Indian or non-resident Indian
prospective adoptive parents despite the joint effort
of the Specialised Adoption Agency and State Agency
within sixty days from the date the child has been
declared legally free for adoption, such child shall
be free for inter-country adoption. Thus, sixty days
period has to be elapsed from the date when the child
has been declared legally free for adoption. In the
present case, child was declared free for adoption on
14.12.2017 by Child Welfare Committee, Patna, Bihar.
Before expiry of sixty days, child could not have
been offered for adoption to parents, who are
22
eligible for adoption under Section 59. We are,
however, not oblivious to the fact that respondent
Nos.1 and 2 had been bonafide pursuing their
applications for adoption, initially as resident
Indians and thereafter even as overseas citizens of
India. As per Section 57, both the respondent Nos.1
and 2 are fully eligible and competent to adopt the
child. It was under the circumstances as noticed
above that the child Shomya was offered to respondent
Nos.1 and 2, who rightly communicated their
acceptance and communicated with the child and are
willing to take child in adoption and to take all
care and provide good education to her. We have no
doubt in the bonafide or the competence of respondent
Nos.1 and 2 in their effort to take the child in
adoption, but the statutory procedure and the
statutory regime, which is prevalent as on date and
is equally applicable to all aspirants, i.e., Indian
prospective adoptive parents and prospective adoptive
parents for inter-country adoption, cannot be lost
sight. However, by virtue of Section 59(2), the
respondent Nos.1 and 2 can at best may be given
priority in inter-country adoption, they being
23
eligible overseas citizens of India and further due
to consequences of events and facts as noticed above.
16. In view of the foregoing discussions, we are of
the view that ends of justice be served in disposing
the Civil Appeals arising out of SLP (C) Nos. 1476-
1477 of 2019 in following manner:
(i) The decision dated 27.02.2018 as
communicated to the respondent Nos. 1 and 2
by e-mail dated 15.03.2018 is upheld.
(ii) Judgments of learned Single Judge as well
as of Division Bench in so far as it
directs to consider and examine the
application of respondent Nos. 1 and 2 on
the basis of first registration dated
19.07.2016 are set aside.
(iii) The competent authority shall again notify
the child Shomya legally free for adoption,
which notification shall be issued within
one week from today.
(iv) That in event, within sixty days from the
date the child(Shomya) is declared as
legally free for adoption is not taken by
or adopted by Indian prospective adoptive
24
parents, the child Shomya shall be given in
adoption to the respondent Nos.1 and 2 in
inter-country adoption. All consequential
steps thereafter shall be completed.
17. Now, coming to Civil Appeals arising out of SLP
(C) Nos. 1478-1479, these appeals have been filed
against the order dated 04.09.2018 passed in C.C.C.
Nos. 1690-1691 of 2018, the contempt proceedings
having been closed by the Division Bench by its
impugned judgment dated 04.09.2018, nothing more is
required to be said in that regard. We, however,
observe that filing of the contempt applications in
the fact situation of the present case was illadvised. Both the contempt applications deserve to
be rejected. The appeals are allowed and contempt
applications stand rejected. Parties shall bear
their own costs.
......................J.
 ( ASHOK BHUSHAN )
......................J.
 ( K.M. JOSEPH )
New Delhi,
February 25, 2019.
25

Medical Negligence -vs- wrong diagnosis.= it could be termed as a case of wrong diagnosis and certainly not one of medical negligence. = whether her admittance and discharge from respondent No.1-Hospital was the sole, or even the most likely cause of her death. The death had been caused by a multiplicity of factors. In the end, we may also note that the medical certificate issued for the cause of death by Fortis Escorts Hospital cited septic shock due to multiple organ failure as the immediate cause of death, with her diabetic condition being an antecedent cause, as also the multiple malignancies, post chemotherapy and radiotherapy all contributing to her passing away. 17. We appreciate the pain of the appellant, but then, that by itself cannot be a cause for awarding damages for the passing away of his wife. We have sympathy for the appellant, but sympathy cannot translate into a legal remedy. 18. We cannot fault the reasoning of the NCDRC. Thus, the result is that the appeal is dismissed, leaving the parties to bear their own costs.

Hon'ble Mr. Justice Sanjay Kishan Kaul 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2024 of 2019
{Arising out of SLP(C) No.32721/2017}
VINOD JAIN ….Appellant
versus
SANTOKBA DURLABHJI
MEMORIAL HOSPITAL & ANR. ….Respondents
J U D G M E N T
SANJAY KISHAN KAUL, J.
1. Leave granted.
2. The sad demise of the wife of the appellant on 31.10.2011 has
resulted in the legal proceedings being initiated by the appellant on a
belief that the cause of her death was medical negligence. The State
Consumer Disputes Redressal Commission, Rajasthan (for short ‘State
Commission’) found in favour of the appellant vide order dated
11.5.2016, but the said order was upset in appeal in the National
1
Consumer Disputes Redressal Commission, New Delhi (for short
‘NCDRC’) vide order dated 1.8.2017. We are, thus, faced with the
present appeal.
3. Late Mrs. Sudha Jain was the wife of the appellant, who was
suffering from various diseases – oesophageal cancer (past history of
colon and breast cancer), hypertension and type 2 diabetes. The occasion
to be admitted to respondent No.1-Hospital and being treated by
respondent No.2-Doctor on 15.10.2011 was chills and fever as also for
re-insertion of nasal feed tube, stated to be dislodged due to severe
dysphagia. She was attended to by respondent No.2-Doctor for the chill
and fever, and nasal feed tube was inserted on the same day by Dr.
Anurag Govil, with some allied tests prescribed to be carried out. One of
the tests was a Complete Blood Count Report, which found that the
WBC count was high, indicative of infection. She had also running
temperature of 104 degrees Fahrenheit, and her medical treatment
commenced with intravenous administration of injection Magnex of 1.5
mg. As per the medical reports, the cannula used for intravenous
treatment stopped functioning and respondent No.2-Doctor prescribed a
further antibiotic tablet, Polypod (Cefpodoxime) to be orally
2
administered through the nasal tube. The patient was discharged from
respondent No.1-Hospital on 18.10.2011, at which stage also her WBC
count was high and she was prescribed to continue taking her medicines
for a period of 5 days post discharge, which apparently was administered
to her, as per the appellant.
4. The appellant claimed that on 23.10.2011, his wife went into coma
and had to be admitted to a nearby Heart and General Hospital, where
she was put on life-support ventilation system. The WBC count of the
wife of the appellant had risen even further and the systolic BP was only
40. Her health continued to deteriorate and she was required to be
shifted to the Fortis Escorts Hospital, where she finally succumbed to her
illness on 31.10.2011.
5. The appellant, after the initial period of mourning, is stated to have
consulted various doctors, including his son, who is stated to be a doctor
practicing in USA. It is his belief, on the basis of such discussion, that
the respondents were guilty of medical negligence in the manner in
which medical treatment was administered to his wife and her subsequent
discharge from respondent No.1-Hospital. The appellant filed a
complaint with the Medical Council of Rajasthan, a statutory body
3
constituted under the Rajasthan Medical Act, 1952, but that endeavour
proved to be unsuccessful as no case of medical negligence was found in
the given facts of the case, in terms of the order passed on 13.7.2012.
The process of coming to this conclusion included the response of
respondent No.2-Doctor to a panel of eleven doctors, which scrutinised
the complaint and the material placed before the panel, by the appellant.
The further appeal of the appellant, before the Medical Council of India
was rejected as time barred on 8.3.2013. The next legal journey of the
appellant began by approaching the State Commission, by filing a
consumer complaint. The appellant sought to make out a case of: (a)
inappropriate and ineffective medication; (b) failure to restart the cannula
for IV medication; (c) premature discharge of the deceased despite her
condition warranting treatment in the ICU; (d) oral administration of
Polypod antibiotic, despite her critical condition, which actually required
intravenous administration of the medicine.
6. On the other hand, the stand of the respondents was that when the
patient was discharged, she was afebrile, her vitals were normal and she
was well-hydrated, with no infection in her chest or urinary tract. She
was stated to be clinically stable from 15.10.2011 to 17.10.2011 and that
4
is why she was so discharged on 18.10.2011, with proper medical
prescriptions for the next 5 days. However, the State Commission found
in favour of the appellant and directed a compensation of Rs.15 lakh and
costs of Rs.51,000/- to be paid to the appellant. Aggrieved by the said
order of the State Commission, the respondents preferred an appeal
before the NCDRC, which exonerated the respondents of any medical
negligence vide impugned order dated 1.8.2017. It was opined that at the
highest, it could be termed as a case of wrong diagnosis and certainly not
one of medical negligence.
7. In order to appreciate the opinion of the NCDRC, it would be
appropriate to lay down the legal principles which would apply in cases
of medical negligence.
8. ‘Negligence’ has been defined in the Halsbury’s Laws of England,
4
th Edn., Vol. 26 pp.17-18 and extracted in Kusum Sharma & Ors. v.
Batra Hospital & Medical Research Centre & Ors.1
 as under:
“22. Negligence. – Duties owed to patient. A person who holds
himself out as ready to give medical advice or treatment
impliedly undertakes that he is possessed of skill and
knowledge for the purpose. Such a person, whether he is a
registered medical practitioner or not, who is consulted by a
patient, owes him certain duties, namely, a duty of care in
deciding whether to undertake the case; a duty of care in
1 (2010) 3 SCC 480
5
deciding what treatment to give; and a duty of care in his
administration of that treatment. A breach of any of these duties
will support an action for negligence by the patient”
9. A fundamental aspect, which has to be kept in mind is that a doctor
cannot be said to be negligent if he is acting in accordance with a practice
accepted as proper by a reasonable body of medical men skilled in that
particular art, merely because there is a body of such opinion that takes a
contrary view (Bolam v. Friern Hospital Management Committee2
). In
the same opinion, it was emphasised that the test of negligence cannot be
the test of the man on the top of a Clapham omnibus. In cases of medical
negligence, where a special skill or competence is attributed to a doctor,
a doctor need not possess the highest expert skill, at the risk of being
found negligent, and it would suffice if he exercises the ordinary skill of
an ordinary competent man exercising that particular art. A situation,
thus, cannot be countenanced, which would be a disservice to the
community at large, by making doctors think more of their own safety
than of the good of their patients.
10. This Court in another judgment in Jacob Mathew v. State of
2 (1957) 1 WLR 582 :: (1957) 2 All ER 118
6
Punjab3
 dealt with the law of negligence in respect of professionals
professing some special skills. Thus, any individual approaching such a
skilled person would have a reasonable expectation of a degree of care
and caution, but there could be no assurance of the result. A physician,
thus, would not assure a full recovery in every case, and the only
assurance given, by implication, is that he possesses the requisite skills in
the branch of the profession, and while undertaking the performance of
his task, he would exercise his skills with reasonable competence. Thus,
a liability would only come, if (a) either the person (doctor) did not
possess the requisite skills, which he professed to have possessed; or (b)
he did not exercise, with reasonable competence in a given case, the skill
which he did possess. It was held not to be necessary for every
professional to possess the highest level of expertise in that branch in
which he practices. In the said opinion, a reference was, once again,
made to the Halsbury’s Laws of England as under:
“To establish liability on that basis it must be shown (1) that
there is a usual and normal practice; (2) that the defendant has
not adopted it; and (3) that the course in fact adopted is one no
professional man of ordinary skill would have taken had he
been acting with ordinary care.”
3 (2005) 6 SCC 1
7
11. In Hucks v. Cole4
, Lord Denning speaking for the Court observed
as under:
“A medical practitioner was not to be held liable simply
because things went wrong from mischance or misadventure or
through an error of judgment in choosing one reasonable course
of treatment in preference of another. A medical practitioner
would be liable only where his conduct fell below that of the
standards of a reasonably competent practitioner in his field.”
12. In para 89 of the judgment in Kusum Sharma & Ors.5
 the test had
been laid down as under:
“89. On scrutiny of the leading cases of medical negligence
both in our country and other countries specially the United
Kingdom, some basic principles emerge in dealing with the
cases of medical negligence. While deciding whether the
medical professional is guilty of medical negligence following
well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission
to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of
human affairs, would do, or doing something which a
prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The
negligence to be established by the prosecution must be
culpable or gross and not the negligence merely based upon
an error of judgment.
III. The medical professional is expected to bring a
reasonable degree of skill and knowledge and must exercise
4 (1968) 118 New LJ 469
5 (supra)
8
a reasonable degree of care. Neither the very highest nor a
very low degree of care and competence judged in the light
of the particular circumstances of each case is what the law
requires.
IV. A medical practitioner would be liable only where his
conduct fell below that of the standard so far reasonably
competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope
for genuine difference of opinion and one professional
doctor is clearly not negligent merely because his
conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a
procedure which involves higher element of risk, but which
he honestly believes as providing greater chances of success
for the patient rather than a procedure involving lesser risk
but higher chances of failure. Just because a professional
looking to the gravity of illness has taken higher element of
risk to redeem the patient out of his/her suffering which did
not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as
he performs his duties with reasonable skill and competence.
Merely because the doctor chooses one course of action in
preference to the other one available, he would not be liable
if the course of action chosen by him was acceptable to the
medical profession.
VIII. It would not be conducive to the efficiency of the
medical profession if no doctor could administer medicine
without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society
to ensure that the medical professionals are not
unnecessarily harassed or humiliated so that they can
perform their professional duties without fear and
9
apprehension.
X. The medical practitioners at times also have to be saved
from such a class of complainants who use criminal process
as a tool for pressurizing the medical professionals/hospitals
particularly private hospitals or clinics for extracting
uncalled for compensation. Such malicious proceedings
deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection
so long as they perform their duties with reasonable skill
and competence and in the interest of the patients. The
interest and welfare of the patients have to be paramount for
the medical professionals.”
13. Now turning to the application of the aforesaid principles to the
facts at hand. It is material to note that the respondent No.1-Hospital
promptly attended to the wife of the appellant. Respondent No.2,
physician, once again, attended to her promptly, and started her on
antibiotic treatment. The nasal feed tube was re-inserted promptly.
However, in the early hours on the next day, on 16.10.2011, the cannula
stopped functioning and instead of re-cannulating the patient, oral
administration of the antibiotic Polypod was found justified. It is this
aspect, which according to the appellant, amounts to medical negligence.
The explanation offered by respondent No.2-Doctor was that when he
attended the patient at 11:00 a.m. on 16.10.2011, he found that the drip
10
had been disconnected, on account of all peripheral veins being blocked
due to past chemotherapies, and that the drip had been stopped, the night
before itself, at the instance of the appellant. Taking into consideration
the fact that the patient was normal, afebrile, well-hydrated and displayed
normal vitals, the oral administration of the tablet was prescribed. This,
according to the NCDRC was the professional and medical assessment
by respondent No.2-Doctor, arrived at on the basis of a medical condition
of the patient, and could not constitute medical negligence.
14. We see no reason to differ from the view expressed by the
NCDRC, keeping in mind the test enunciated aforesaid. Respondent
No.2-Doctor, who was expected to bring a reasonable degree of skill,
knowledge and care, based on his assessment of the patient, prescribed
oral administration of the antibiotic in that scenario, especially on
account of the past medical treatments of the wife of the appellant,
because of which the veins for administration of IV could not be located.
Her physical condition was found to be one where the oral administration
of the drug was possible.
15. The appellant has also sought to make out a case that the blood
culture report required his wife to be kept in the hospital. This was again
11
a judgment best arrived at by respondent No.2-Doctor, based on her other
stable conditions, with only the WBC count being higher, which, as per
the views of the respondent No.2-Doctor, could be treated by
administration of the antibiotic drug orally, which was prescribed for 5
days, and as per the appellant, was so administered. In the perception of
the doctor, the increase in lymphocytes in the blood count was the result
of the patient displaying an improved immune response to the infection.
It is in this context that the NCDRC opined that at best, it could be
categorised as a possible case of wrong diagnosis.
16. In our opinion the approach adopted by the NCDRC cannot be said
to be faulty, while dealing with the role of the State Commission, which
granted damages on a premise that respondent No.2-Doctor could have
pursued an alternative mode of treatment. Such a course of action, as a
super-appellate medical authority, could not have been performed by the
State Commission. There was no evidence to show any unexplained
deviation from standard protocol. It is also relevant to note that the
deceased was medically compromised by the reason of her past illnesses.
The deceased was admitted to two other hospitals, post her discharge
from respondent No.1-Hospital. The moot point was whether her
12
admittance and discharge from respondent No.1-Hospital was the sole, or
even the most likely cause of her death. The death had been caused by a
multiplicity of factors. In the end, we may also note that the medical
certificate issued for the cause of death by Fortis Escorts Hospital cited
septic shock due to multiple organ failure as the immediate cause of
death, with her diabetic condition being an antecedent cause, as also the
multiple malignancies, post chemotherapy and radiotherapy all
contributing to her passing away.
17. We appreciate the pain of the appellant, but then, that by itself
cannot be a cause for awarding damages for the passing away of his wife.
We have sympathy for the appellant, but sympathy cannot translate into a
legal remedy.
18. We cannot fault the reasoning of the NCDRC. Thus, the result is
that the appeal is dismissed, leaving the parties to bear their own costs.
..….….…………………….J.
[L. Nageswara Rao]
...……………………………J.
[Sanjay Kishan Kaul]
New Delhi.
February 25, 2019.
13

some of the eligible candidates have not been appointed till date. Mr. R. Venkataramani, learned Senior Counsel appearing for the DISCOMS fairly submitted that if persons who applied for selection as Junior Lineman in 2006 were not appointed due to condition 6(iv) (c) of the revised notification dated 20.10.2006, they shall be considered for appointment. Keeping in mind that appointments to the posts of Junior Linemen have been made long back and the services of those appointed were regularised, any interference with such appointments will cause irreparable loss to them apart from adversely affecting the smooth functioning of the A.P. TRANSCO and the DISCOMS. 13. Needless to say that, any future recruitment to the post of Junior Lineman shall be done strictly in accordance with the law.

 Non -Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos._2049-2158 of 2019
[ Arising out of S.L.P. (Civil) No.15001-15110 of 2013
]
K. Amarnath Reddy & Ors.
 .... Appellants

Versus
Chairman & Managing Director, A.P.S.P.D.C.L. & Ors.
Etc. Etc.
….Respondents
W I T H
Civil Appeal Nos. 2159-2268 of 2019
[ Arising out of SLP(C) Nos. 15114-15223 of 2013]
Civil Appeal Nos.2269-2272 of 2019
[ Arising out of SLP(C) Nos. 25586-25589 of 2013]
Contempt Petition (C) Nos.570-679 of 2018
In SLP(C) No. 15001-15110 of 2013
Contempt Petition (C) Nos.1773-1776 of 2017
In SLP (C) No.25586-25589 of 2013
Diary No.18811 of 2018
Diary No.26419 of 2018
J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted.
1. The validity of appointment to the posts of Junior
Linemen in the Andhra Pradesh Transmission Corporation
1 | P a g e
(A.P. TRANSCO) and the four Andhra Pradesh Distribution
Companies (DISCOMS) in the erstwhile combined State of
Andhra Pradesh is in issue in these appeals.
2. On 07.06.2006, the Special Chief Secretary, Energy
Department, Government of Andhra Pradesh permitted the
Chairman & Managing Director, A.P. TRANSCO and the
Chairpersons, Andhra Pradesh Power Coordination
Committee (APPCC) to fill up 7114 posts of Junior Linemen
on contract basis in the four DISCOMS duly following the
rule of reservation. The appointment on contract basis
was to be for a period of one year which would cease
automatically after the said period. Pursuant to the said
permission granted by the Government, the A.P. TRANSCO
and the four DISCOMS advertised 7114 vacancies and
called for applications from the eligible candidates for the
post of Junior Lineman vide separate notifications. For the
sake of convenience, the conditions prescribed in the
notifications, issued by Andhra Pradesh Central Power
Distribution Company Limited (APCPDCL) are referred to in
the judgment. The permission granted by the Government
contained certain conditions which were included in the
advertisement dated 08.06.2006. ITI qualification,
2 | P a g e
residence in the notified area, and pole climbing were
made compulsory as per Clauses 7 (i), (ii), and (iii) of the
advertisement. According to Clause 7 (iv), all candidates
who fulfilled the compulsory conditions in sub clauses (i),
(ii), and (iii) of Clause 7 would be considered for selection
on the basis of the marks obtained by them in ITI
examination. A writ petition was filed in the High Court by
the existing contract labourers questioning Clauses 7 (ii)
and (iv) of the advertisement/notification dated
08.06.2006 by which residence in the notified area was
made compulsory and selection was based on the marks
obtained in ITI examination. The writ petition was
disposed of with a direction that Operation/ Circle/District
shall be treated as a unit of appointment without reference
to the restriction imposed under Clause 7 (ii). There was a
further direction that weightage should be given to
experienced candidates.
3. A revised notification was issued on 20.10.2006 in
which the criteria for selection and appointment as Junior
Lineman was altered. The contract labourers were given
preference for selection over the fresh candidates.
Amongst the contract labourers, selection was to be on the
3 | P a g e
basis of earlier date of birth. The preference given to age
in the revised notification was the subject matter of
challenge in the High Court. The High Court allowed the
writ petition by holding that the absolute preference given
to the earlier date of birth irrespective of the merit of the
candidates in the qualifying examination and the length of
service as illegal and arbitrary. However, the High Court
refused to interfere with the selections already made as
they were contractual in nature and were made only for a
period of one year. Being aware that setting aside the
appointments would result in serious dislocation of work,
the selected candidates were permitted to continue till the
expiry of the original contract. The authorities were
directed not to extend the contract under any
circumstance. A fresh selection process was directed to
be initiated and further direction was given by the High
Court to consider the feasibility of evolving a structured
formula to give preference to the contract labourers by
awarding one mark for each year of completed service.
Rule of reservation was to be strictly followed and the
appointments were to be made only for one year.
Aggrieved by the said judgment, the A.P. TRANSCO and the
4 | P a g e
DISCOMS filed Writ Appeal No.1434 of 2008 and Batch.
The directions issued by the learned Single Judge regarding
the method of preference to be given to the contract
labourers and the appointments to be restricted to only
one year were set aside by the Division Bench of the High
Court. However, the Division Bench approved the
directions pertaining to reservation.
4. During the course of arguments in the Writ Appeals,
the learned Advocate General on the basis of written
instructions from the DISCOMS submitted that the writ
petitioners who were adversely affected by Clause 6 (iv)
(c) of the revised notification which relates to preference
being given to the earlier date of birth can be
accommodated. The submission of the learned Advocate
General was that the services of all the 7114 Junior
Linemen have to be terminated if Clause 6 (iv) (c) of the
revised notification dated 20.10.2006 is struck down which
would lead to serious disruption of essential services. In
order to obviate such dislocation, a decision was taken to
appoint and absorb all the writ petitioners who could not
be selected in view of the Clause 6 (iv) (c) of the revised
notification. On the basis of the statement of the learned
5 | P a g e
Advocate General, the Division Bench directed
appointment of all the writ petitioners who had submitted
their applications pursuant to the notifications dated
08.06.2006/ 20.10.2006 and who could not be selected in
view of the condition mentioned in Clause 6 (iv) (c) of the
revised notification dated 20.10.2006. It is relevant to
note that the said direction was made applicable even to
those candidates who did not approach the High Court.
The Division Bench observed that all those selected and
appointed pursuant to the judgment shall be entitled to all
the benefits at par with the persons who have already
been appointed as Junior Linemen. It was further held that
they were entitled to the regularization of their services as
well.
5. The services of 7114 Junior Linemen who were
appointed on contract basis pursuant to the notifications
dated 08.06.2006/ 20.10.2006 were regularized on
28.12.2010 w.e.f. 03.10.2008. Aggrieved by the non
implementation of the directions issued by the Division
Bench in Writ Appeal No.1523 of 2008 and Batch dated
17.11.2009, persons who were not appointed filed
Contempt Petitions. It was brought to the notice of the
6 | P a g e
Division Bench hearing the Contempt Petitions that a
learned Single Judge stayed all further appointments to the
posts of Junior Linemen on 22.04.2010 in Writ Petition
No.9129 of 2010. The Division Bench vacated the said
interim order and directed the completion of the entire
process of appointment and regularization as per the
judgment in Writ Appeals 1434 of 2008 and Batch within a
period of two months.
6. Permission was accorded by the Government to fill
up another 7319 vacant posts of Junior Linemen in the A.P.
TRANSCO and the four DISCOMS on 15.06.2011. In the
meanwhile, the process of implementation of the judgment
in Writ Appeals 1434 of 2008 and Batch was continuing
and a large number of contract labourers who could not be
appointed in view of Clause 6 (iv) (c) of the revised
notification dated 20.10.2006 were appointed even after
the fresh notification was issued. There is no dispute that
these appointments were beyond the 7114 posts that were
advertised in 2006.
7. Several writ petitions were filed in the High Court
raising various points including the validity of
appointments beyond those that were advertised in the
7 | P a g e
year 2006. Preference given to experienced candidates in
the selections made pursuant to the advertisement of
2006 was also subject matter of some writ petitions. The
High Court disposed of the writ petitions by a common
judgment dated 14.03.2012 by giving the following
declarations and directions:
“DECLARATIONS:
i) The Notifications dated 6/8.06.2006 as revised on
20/21.10.2006 are legal, except the condition no. 6 (iv)
(c ) of the revised notification dated 20/21.10.2006,
which was already struck down by this Court.
ii) Among the qualified candidates, the contract labour
appointed earlier and working as on the date of
issuance of first notification i.e., 6/8.6.2006 with work
experience as certified by the concerned Divisional
Engineer, shall alone be treated as presently working
contract labour and are entitled for preference in
selection based on the length of service.
iii) The persons appointed as on the date of first
notification and revised notification, shall be treated as
freshers.
iv) If the contract labour and freshers apply for the post
of Contract Junior Lineman, the contract labour shall be
given preference for selection as per condition 6 (iv) (b)
of the revised notification.
v) The action of AP Transco and four distribution
companies in selecting the fresh candidates based on
their marks in ITI examination, ignoring the claim of the
eligible experienced contract labour is illegal.
vi) After considering the cases of all the existing
contract labour, still if there remains any vacant posts,
then the cases of the fresh candidates shall be
considered subject to fulfilling the requisite conditions
and the marks obtained in the qualifying examination
shall be the criteria for their selection as per condition 6
(iv) (d) of the revised notification.
8 | P a g e
vii) Applicants who applied pursuant to the notifications
are entitled to be considered even if their names are not
sponsored by the employment exchange concerned.
viii) If more than one contract labour apply for the post
with same length of service and experience, in such
cases, obviously, the candidate with earlier date of birth
shall be given preference for selection.
ix) The technical qualifications, the educational
qualifications, age and experience etc shall be fulfilled
as on the date of the first notification i.e., 6/8.6.2006
alone.
x) The candidates who have applied pursuant to the
notifications dated 6/8.6.2006 as revised on
20/21.10.2006 and fulfil all the requisite qualifications
such as technical, educational, age, nativity, experience
etc as on the date of first notification, shall alone be
considered for the 7114 posts notified by AP Transco
and four distribution companies.
xi) The candidates who have not applied in pursuance of
the notifications dated 6/8.6.2006 as revised on
20/21.10.2006 and permitted to pole climbing test
pursuant to the orders of this Court are not entitled to
be considered.
xii) The action of AP Transco and four distribution
companies in filling up the subsequent vacancies that
arose pursuant to the permission granted by the
Government vide its letter No.565/Ser/2011 dated
15.6.2011, with any of the candidates either affected by
reason of struck down of condition No. 6 (iv) (c ) of the
revised notification or on any account is illegal. If they
are entitled to be selected by giving preference to their
experience/length of service subject to fulfillment of
requisite conditions/qualifications for such consideration
shall be restricted to notified 7114 posts only as they
are entitled for selection under conditions 6 (iv) (a) and
(b) of the revised notification.
xiii) Though the selection and appointment of JLM is for
one-year contract period, the employer is entitled to
retain, absorb and regularize their appointment and also
consider for their promotion.
xiv) The subsequent vacancies of 7319 JLM posts that
arose pursuant to the permission granted by the
Government vide its letter No. 565/Ser/2011 dated
9 | P a g e
15.6.2011 shall be filled by issuing fresh notifications
alone as per the rules.
xv) No contract labour or fresh candidate is entitled to
claim any sort of exemption with regard to age,
educational qualifications, technical qualifications, pass
in pole climbing test etc for consideration of their cases
for appointment to the post of JLM.
xvi) The rule of reservation shall be followed both in
respect of existing contract labour as well as fresh
candidates as per the existing procedure and practice.
Though the unit of appointment is circle/district,
maintenance of the roster as per the existing practice
either division wise or circle wise, as the case may be, is
legal and valid for implementation of rule of reservation,
as the posts are not civil posts.
DIRECTIONS:
a). The selections made contrary to the above
declarations are illegal and they are set aside.
b). The selection of the candidates as against the
subsequent vacancies of 7319 posts of JLM that arose
pursuant to the permission of the government vide
letter No.565/Ser/2011 dated 15.6.2011 is illegal and
the same are set aside.
c). The respondents are directed to review the entire
selection process strictly in terms of this judgment and
the afore said declarations and pass appropriate orders
in accordance with law within a period of eight weeks
from the date of receipt of copy of this order.
d). The respondents are directed to fill up 7319 posts of
JLM that arose pursuant to the permission of the
government vide letter No. 565/Ser/2011 dated
15.6.2011 by issuing the notifications / calling for
applications from the eligible candidates, of course, by
giving preference to the contract labour as per rules.”
Aggrieved by the said judgment, the above appeals
are filed.
8. We have heard the learned counsel for the parties.
The selection and appointment to 7114 posts of Junior
10 | P a g e
Linemen were approved by a judgment dated 10.11.2009
of the Division Bench in Writ Appeal 1434 of 2008 and
Batch. Their services have also been regularized. The
directions issued by the High Court in the impugned
judgment pertaining to the selection of 7114 Junior
Linemen pursuant to the advertisement dated 08.06.2006/
20.10.2006 is not justified. No such directions could be
issued especially after the judgment of another Division
Bench approving appointments of 7114 Junior Linemen
became final. The High Court is right in holding that
appointments could not have been made to posts beyond
the 7114 posts that were advertised. However, the High
Court ought to have considered that the submission made
by the learned Advocate General regarding the imminent
disruption of essential services was taken into account by
an earlier Division Bench which permitted the filling up of
posts beyond the 7114 posts which were advertised. On
the basis of the submission of the learned Advocate
General and the judgment of the High Court in Writ Appeal
1434 of 2008 and Batch, persons who participated in the
selections but could not be appointed in view of condition
mentioned in Clause 6 (iv)(c) of the amended notification
11 | P a g e
dated 20.10.2006 were also appointed as contract
labourers and their services were regularised.
9. A perusal of the declarations and directions in the
impugned judgment would show that the High Court
conducted a scrutiny of the selections made pursuant to
the notifications dated 08.06.2006/20.10.2006 to 7114
posts of Junior Linemen. The submission made by the
learned Senior Counsel appearing for the parties is that the
appointments made to posts beyond 7114 posts that were
advertised on 08.06.2006/20.10.2006 were by way of
implementation of the directions issued by a Division
Bench of the High Court on 10.11.2009 in Writ Appeal 1434
of 2008 and Batch. Therefore, according to them, the
finding of the High Court that appointments made to posts
beyond those that were advertised is not correct. The
directions issued by the High Court are:-
“Therefore, taking the aforesaid undertakings of the
Appellant-Distribution Companies on record, we direct
the Appellant Companies to appoint all the
Respondents/Writ Petitioners, who submitted their
applications pursuant to the notifications dated
8.6.2006 and the other dates, issued by the various
appellant companies, and who have passed the pole
climbing test and fulfilled the other eligibility criterion
for appointment as Junior Linemen, without reference to
and without insisting upon the fulfillment of Condition
No.6 (iv) (c) of the revised notification dated 20.10.2006
within two months from the date of receipt of a copy of
this order.
12 | P a g e
We also make it clear that this direction would be
applicable to all those candidates, who have not
approached this Court but who had applied in pursuance
of the aforementioned notifications, subject to passing
of the pole climbing test and fulfillment of eligibility
criteria.
We however make it clear that the persons who have
not applied in pursuance of the notifications dated
8.6.2006 and the other dates and who have not
subjected themselves to the selection process have no
right whatsoever to claim that they are entitled for such
appointment.
We also make it clear that all the selected and
appointed respondents-Writ Petitioners and others
similarly situated would be entitled for all benefits on
par with the persons who have been appointed as Junior
Linemen as per Condition No.6 (iv)(c) of the revised
notification, including regularization of their service as
per rules and policy.”
10. The said judgment of the High Court in Writ Appeal
No.1434 of 2008 and Batch was referred to in the
impugned judgment. However, the High Court proceeded
to adjudicate the correctness of the selections made
pursuant to the notification dated 08.06.2006/20.10.2006.
The judgment of the High Court in Writ Appeal No.1434 of
2008 and Batch became final and appointments were
made pursuant to the directions issued. The High Court
committed a serious error in re-examining the selections to
7114 posts of Junior Linemen and other appointments
made beyond the posts that were advertised, made
pursuant to the advertisement dated
08.06.2006/20.10.2006. Therefore, the declarations and
13 | P a g e
directions which have a bearing on the selections and
appointments that are already made are not sustainable.
11. Ms. Prerna Singh, learned counsel appearing for the
persons who are similarly situated to those who were
directed to be appointed by the Division Bench in Writ
Appeal No.1434 of 2008 and Batch submitted that some of
the eligible candidates have not been appointed till date.
Mr. R. Venkataramani, learned Senior Counsel appearing
for the DISCOMS fairly submitted that if persons who
applied for selection as Junior Lineman in 2006 were not
appointed due to condition 6(iv) (c) of the revised
notification dated 20.10.2006, they shall be considered for
appointment.
12. Keeping in mind that appointments to the posts of
Junior Linemen have been made long back and the
services of those appointed were regularised, any
interference with such appointments will cause irreparable
loss to them apart from adversely affecting the smooth
functioning of the A.P. TRANSCO and the DISCOMS.
13. Needless to say that, any future recruitment to the
post of Junior Lineman shall be done strictly in accordance
with the law.
14 | P a g e
14. For the aforementioned reasons, the judgment of the
High Court is set aside and the appeals are allowed.
Contempt Petitions are closed. All the pending
applications are disposed of in terms of the above
judgment.
 ..................................J.
[L. NAGESWARA RAO]
 ..................................J.
 [SANJAY KISHAN KAUL]
New Delhi,
February 25, 2019
15 | P a g e

convicted the accused-appellant for the offences under Sections 279 IPC and 304-A IPC; and awarded the punishment of 6 2 months' rigorous imprisonment and fine of Rs. 1,000/- with default stipulation for the offence under Section 279 IPC and 2 years' rigorous imprisonment and fine of Rs. 2,000/- with default stipulation for the offence under Section 304-A IPC. = just and adequate punishment do apply to the present case too; and we find no reason to reduce the punishment awarded or to extend the benefit of probation where a 15 year old boy lost his life due to the rash and negligent driving of the truck by the appellant and where, after causing the accident, the appellant fled from the site and was surrendered by his commandant more than 3 weeks later.

Hon'ble Mr. Justice Dinesh Maheshwari 
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1827 OF 2009
SUBHASH CHAND Appellant(s)
Vs.
STATE OF PUNJAB Respondent(s)
JUDGMENT
Dinesh Maheshwari, J.
In this appeal, the appellant-accused has called in question the order
dated 18.04.2009 in Criminal Revision No. 621 of 2009 whereby, the High
Court of Punjab & Haryana, Chandigarh has upheld his conviction for the
offences under Sections 279 and 304-A of the Indian Penal Code ('IPC').
2. The accusation against the appellant had been that on 10.03.2000, at
around 07:30 a.m., while driving a truck bearing registration No. HPS 5716 at
a high speed and in a rash and negligent manner on the wrong side of a
heavy traffic area at Mall Road, Patiala (near Malwas Cinema), he caused an
accident which resulted in the demise of the rider of an unnumbered Hero
1
Puck Moped. It was further alleged that the appellant immediately fled from
the scene with his vehicle. For the incident in question, FIR was registered at
Police Station Kotwali, Patiala on the statement of Nirpal Singh (PW-2), who
was an eye-witness to the accident alongwith Rajinder Singh (PW-3). The
appellant, who was serving with ITBP, was surrendered by his commandant
and was arrested on 04.04.2000. After completion of investigation, the
accused was charge-sheeted for the offences aforesaid.
3. In trial, the prosecution, inter alia, relied on the testimony of PW-2 Nirpal
Singh, who asserted that at the time of the accident, he was going on a
scooter with his brother Rajinder Singh and saw the truck of ITBP bearing
registration number HPS-5716 being driven by the accused in a rash and
negligent manner; and the truck, while turning on the wrong side of the road,
ran over the moped, resulting in the demise of the rider. Rajinder Singh (PW3) corroborated the testimony of PW-2. The accused-appellant attempted to
suggest that his identity was in doubt as, admittedly, the driver of the offending
truck had fled from the scene.
4. In its judgment and order dated 28.11.2005, the Trial Court rejected the
contentions urged on behalf of the accused and found it proved that he did
cause the accident which resulted in the death of the rider of moped; and
further that the identity of the accused-appellant as driver of the offending
vehicle was not in doubt for he was surrendered by his own commandant.
Accordingly, the Trial Court convicted the accused-appellant for the offences
under Sections 279 IPC and 304-A IPC; and awarded the punishment of 6
2
months' rigorous imprisonment and fine of Rs. 1,000/- with default stipulation
for the offence under Section 279 IPC and 2 years' rigorous imprisonment and
fine of Rs. 2,000/- with default stipulation for the offence under Section 304-A
IPC.
5. The appeal preferred by the accused-appellant against the judgment
and order aforesaid was considered and dismissed by the Sessions Judge,
Patiala by the judgment dated 04.02.2009 after re-appreciation of the entire
evidence on record. The accused-appellant took the matter further in revision
(Criminal Revision No. 621 of 2009), which was also dismissed by the High
Court of Punjab and Haryana at Chandigarh by the impugned order dated
18.04.2009 giving rise to this appeal.
6. The main plank of the case of the appellant is that his involvement in
the accident in question is not proved, inasmuch as his identity as the driver of
the offending vehicle has not been established. The contention so urged
essentially relates to a question of fact and in the present case, the Trial Court
as also Appellate Court, after detailed scrutiny of the evidence on record,
came to the conclusion that the appellant had been the driver of the vehicle in
question who fled from the scene with his vehicle. Even in the revision
petition, the High Court has taken pains to analyse the evidence and, after
due consideration of the material on record, including the testimony of PW-2
Nirpal Singh and PW-3 Rajinder Singh, has affirmed the finding that the
appellant was indeed the driver of the offending vehicle. The Courts have also
taken note of a significant circumstance that the appellant, who was driver on
3
the said truck of ITBP, was surrendered by his own commandant. On the point
of identity of the appellant-accused, the High Court has neatly summed up the
relevant factors in its impugned order dated 18.04.2009 in the following:
“…The tenor of the evidence is that Nirpal Singh (P2)
did not identify as to who was driving the truck when it
was involved in the accident but he identified the driver
of the truck when he was produced in court. Therefore,
from the said deposition it cannot be said that Nirpal
Singh (PW2) had failed to identify the Petitioner as the
person who was driving the truck. Besides, Rajinder
Singh (PW3) in his deposition on 22.08.2003 stated that
he identified the accused (Petitioner) present in Court
who was driving the offending truck. Besides, the
learned JMIC Patiala in her order has observed that the
FIR was lodged on the same day as the date of the
occurrence. Moreover, the fact that the accused
(Petitioner) was got surrendered by his own
Commandant, could not be over-looked. Therefore, the
findings and the conclusions as regards the identity of
the Petitioner as the person who was driving the
offending vehicle stands clearly established and it is not
a case of false implication of the Petitioner…. ’’
Having examined the record, we are satisfied that the baseless
contention about want of identification of the appellant as the driver of
offending vehicle has rightly been rejected and there is no reason to consider
interference in the concurrent finding of fact in this regard.
7. Learned counsel for the appellant has also endeavoured to point out
certain so called shortcomings or inconsistencies in the prosecution case viz.,
that no dent was found on the vehicle in question on its mechanical
examination; that the alleged photographs of the site of accident were not
4
produced; that as per the statement of PW-3 Rajinder Singh, the dead body
was removed at 10 a.m. whereas, as per PW-2 Nirpal Singh, they reached the
hospital with the dead body of the victim at about 8 a.m.; and that in the
inquest report, the suggestion had been that it was a case of natural death.
8. We are clearly of the view that all the suggestions aforesaid are neither
of any effect nor of bearing on the substance of the matter. It is clearly
established on record that the accident in question did take place at 7:30 a.m.
on 10.03.2000, when the truck driven by the accused bumped into the moped
driven by the deceased Lavjot Singh, who fell on the road and succumbed to
the injuries sustained in this accident. In the post-mortem conducted at 2 p.m.
on 10.03.2000, the doctor concerned (PW-5 Dr. O.P. Agarwal) found multiple
lacerated wounds on the head of the deceased with abrasions on the face and
forehead; skull fractured into pieces; brain injured; and mandible and nasal
bone fractured. In the given set of circumstances, any observation in the
inquest report, or any discrepancy regarding the time of reaching the hospital,
or want of photographs, or want of dent on the vehicle, do not create any
uncertainty or doubt about the prosecution case.
9. Another suggestion is made as if the FIR in the present case was
fabricated or manipulated. This suggestion is too remote and is of uncertain
nature because the FIR was registered on the statement of Nirpal Singh (PW2) and there had been no reason to fabricate or manipulate the FIR in this
case relating to a fatal vehicular accident.
5
10. It has also been argued that the incident in question took place about 19
years back and the appellant has already undergone about four months of
imprisonment and hence, no useful purpose would be served by his
imprisonment now at this stage; and in any case, the appellant deserves to be
extended the benefit of probation. These submissions also deserve to be
rejected in the given set of facts and circumstances of this case.
11. In the case of Thangasamy v. State of Tamil Nadu, Criminal Appeal
No. 698 of 2010 decided on 20.02.2019, we have rejected similar
contentions in relation to a vehicular accident case after taking note of several
decisions of this Court on the principles concerning just and adequate
punishment in such cases, including those in Alister Anthony Pareira v.
State of Maharashtra: (2012) 2 SCC 648; State of M.P. v. Ghansyam
Singh: (2003) 8 SCC 13; Dalbir Singh v. State of Haryana: (2000) 5 SCC
82; and State of Karnataka v. Muralidhar : (2009) 4 SCC 463. The same
principles relating to just and adequate punishment do apply to the present
case too; and we find no reason to reduce the punishment awarded or to
extend the benefit of probation where a 15 year old boy lost his life due to the
rash and negligent driving of the truck by the appellant and where, after
causing the accident, the appellant fled from the site and was surrendered by
his commandant more than 3 weeks later.
12. Accordingly, in view of the above, this appeal fails and is, therefore,
dismissed. The appellant shall surrender before the Court concerned within a
period of 4 weeks from today and shall undergo the remaining part of the
6
sentence. In case he fails to surrender within the period aforesaid, the Trial
Court will take necessary steps to ensure that he serves out the remaining
part of sentence, of course, after due adjustment of the period already
undergone.
...............................................J.
 (ABHAY MANOHAR SAPRE)
 ..............................................J.
 (DINESH MAHESHWARI) 1
New Delhi
Dated: 25th February, 2019.
7

whether we should set aside the entire impugned order or set aside only qua the sole appellant herein because the other four accused though suffered conviction under Section 302/149 IPC alike the appellant herein did not file any appeal against their conviction and secondly, the other accused ­ Kanhai Prasad Chourasia whose conviction and sentence under Section 302/149 IPC read with Section 27 of the Arms Act was upheld has also not filed any appeal in this Court.= It is a fundamental principle of law that an illegality committed by a Court cannot be allowed to be perpetuated against a person to a Lis merely because he did not bring such illegality to the notice of the Court and instead other person similarly placed in the Lis brought such illegality to the Court’s notice and succeed in his challenge. 31. It will be a travesty of justice delivery system where an accused, who is convicted of a lesser offence (Section 27 of the Arms Act alone) and was acquitted of a graver offence (Section 302/149 IPC) is made to suffer conviction for commission of a 15 graver offence (Section 302/149 IPC) without affording him of any opportunity to defend such charge at any stage of the appellate proceedings. 32. Needless to say, if the other four accused had filed the appeals in this Court, they too would have got the benefit of this order. A fortiori, merely because they did not file the appeals and the case is now remanded for re­hearing of the appeal at the instance of one accused, the benefit of re­hearing of the appeal cannot be denied to other co­accused. In other words, the non­appealing co­accused are also entitled to get benefit of the order of this Court and are, therefore, entitled for re­hearing of their appeals along with the present appellant.

Hon'ble Mr. Justice Abhay Manohar Sapre


REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.180 OF 2019
Deep Narayan Chourasia            ….Appellant(s)
VERSUS
State of Bihar     ….Respondent(s)
               
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is filed against the final judgment
and   order   dated   14.11.2017  passed   by   the   High
Court of Judicature at Patna in Criminal Appeal
(DB)   No.77   of   1994   whereby   the   High   Court
dismissed the appeal filed by the appellant  herein.
1
2.  In   order   to   appreciate   the   short   question
involved in this appeal, a few relevant facts need
mention infra.
3. Five   persons,   namely,   (1)   Lukho   Prasad
Chourasia, (2) Birendra Prasad Chourasia, (3) Binod
Prasad Chourasia, (4) Deep Narayan Chourasia and
(5)   Kanhai   Prasad   Chourasia   were   tried   for
commission of offence of murder of  Kaushalya Devi
on   06.02.1992   under   Section   302/149   of     the
Indian Penal Code, 1860 (hereinafter referred to as
“IPC”)   and     Section   27   of   the   Arms   Act   by   the
Additional   Sessions   Judge,     Munger   in   Sessions
Case No. 264/1992.
4. By judgment dated 08.02.1994, the Additional
Sessions   Judge   convicted   the   accused­Kanhai
Prasad   Chourasia   for   the   commission   of   offence
under Section 302 IPC and Section 27 of the Arms
Act and he was accordingly sentenced to undergo
life   imprisonment   under   Section   302   IPC   and
2
rigorous   imprisonment   for   seven   years   under
Section 27 of the Arms Act. Both the sentences were
to run concurrently.
5. So far as co­accused­Lukho Prasad Chourasia,
Birendra   Prasad   Chourasia,   Binod   Prasad
Chourasia   and   Deep   Narayan   Chourasia   are
concerned,   all   the   four   were   acquitted   from   the
charge of commission of offence under Section 302
IPC. However, all the four accused were convicted
for commission of offence under Section 27 of the
Arms   Act   and   accordingly   sentenced   to   undergo
rigorous   imprisonment   for   five   years.     The
concluding   para   of   the   order   of   Sessions   Judge
reads as under:
“Accordingly,   on   the   basis   of   my   findings,
accused  Kanhai  Prasad  Chaurasia,  who   is   in
custody, is convicted u/ss 302 IPC and 27 of
Arms  Act and  is  again  remanded  to  custody
to   serve   his   sentence   and   accused   Lukho
Prasad Chaurasia, Birendra Prasad Chaurasia,
Binod   Prasad   Chaurasia   and   Deep   Narain
Chaurasia; who are on bail; are convicted u/s
27 of Arms Act and, consequently, their bail
3
bonds   are   cancelled   and   are   taken   into
custody to serve their sentences.”
6. All the five accused named above felt aggrieved
by their respective conviction and the award of jail
sentence and filed two criminal appeals in the High
Court.
7. So   far   as   Kanhai   Prasad   Chourasia   is
concerned,   he   filed   Criminal   Appeal(DB)
No.112/1994 whereas the remaining four accused
are   concerned,   they   jointly   filed   Criminal
Appeal(DB)  No.77/1994 in the High Court of Patna.
Both the Criminal Appeals were clubbed together for
hearing.
8. So far as Criminal Appeal No.112/1994 filed
by   the   accused   Kanhai   Prasad   Chourasia   is
concerned, the question to be considered therein
was   only   one,   namely,   whether   the   Additional
Sessions   Judge   was   justified   in   convicting   him
4
(Kanhai Prasad Choursia) under Section 302 IPC
read with Section 27 of the Arms Act.
9. So far as Criminal Appeal No.77/1994 filed by
remaining   four   accused,   namely,   Lukho   Prasad
Chourasia,   Birendra   Prasad   Chourasia,   Binod
Prasad Chourasia and Deep Narayan Chourasia is
concerned,   the   question   involved   therein   was
whether the Additional Sessions Judge was justified
in convicting these four accused under Section 27 of
the   Arms   Act   and   sentenced   them   to   undergo
rigorous imprisonment for five years.
10. The   High   Court,   however,   was   completely
under   misconception   and   misdirected   itself   by
forming an opinion as if all the five accused were
convicted   under   Section   302/149   IPC   and
accordingly went on to appreciate the evidence and
while   dismissing  both  the  appeals  by  a  common
judgment   convicted   four   accused   under   Section
302/149 IPC along with Kanhai Prasad Chourasia.
5
11. This   is   clear   from   the   first   and   concluding
paras   of   the   impugned   judgment,   which   are
reproduced below:
First Para
“As   both   these   appeals   arise   out   of   a
judgment dated 8th February, 1994, passed by
the 12th Additional Sessions Judge, Munger in
Sessions   Trial   No.   264/92,  convicting   the
appellants  under   Section   302   of   I.P.C.   with
life imprisonment and the other accused for
offence under Sections 302/149 I.P.C. to life
imprisonment,   so   also   each   of   them   for
offence 27 of the Arms Act to five years’ R.I.,
these   appeals   have   been   filed   by   the
appellants and they are being disposed of by
this common judgment.” (Emphasis supplied)
Concluding Paras
  “Even  though   learned  counsel  for  the
appellants by taking us through the evidence
tried to point out minor contradictions in the
same,   but   we   find   that   considering   the
complete  reading  of  the  evidence,  the  story
as   is  narrated  by  the  witnesses  and  as   it   is
recorded   in   the   fardbeyan   by   P.W.5   Sundar
Tanti   is   proved.   It   is   a   case   where   the
appellants after the incident that took place
in the morning, with an intention to commit
the crime, armed with rifles and pistols came
to the spot, committed the offence and while
fleeing   away,   to   threaten   the   villagers   who
had   assembled   there,   firing   in   the   air   ran
away.  It   is   a   case   where   they   formed   an
unlawful   assembly,   committed   the   offence
6
and, therefore, conviction under Section 302
and  302/149   of   I.P.C.   is  proper   and   as   the
entire   conviction   is   based   on   the   evidence
that   came   on   record,   we   see   no   reason   to
interfere   into   the   matter   and   allow   this
appeal.  The  prosecution  has  proved   its  case
and   the  conviction,   in  our  considered  view,
does not suffer from any infirmity.
Accordingly,   we   see   no   reason   to
interfere   into  the  matter. The  appeals  being
devoid of merit are dismissed. The appellants
are   on   bail.   Their   bail­bonds   are   cancelled.
They   are  directed   to   be   arrested   and   taken
into   custody   for   undergoing   the   remaining
part of their sentence.” (Emphasis supplied)
12. The effect of the judgment of the High Court is
three­fold.   First,   both   criminal   appeals   stand
dismissed;   Second,   conviction   and   sentence   of
Kanhai   Prasad   Choursia   under   Section   302   IPC
read with Section 27 of the Arms Act is upheld; and
Third, the remaining four accused ­ Lukho Prasad
Chourasia,   Birendra   Prasad   Chourasia,   Binod
Prasad   Chourasia   and   Deep   Narayan   Chourasia
also stand convicted under Section 302 IPC read
7
with Section 149 IPC and Section 27 of the Arms
Act.
13. It is against this judgment, only one accusedDeep Narayan Chourasia has felt aggrieved and filed
this appeal by way of special leave in this Court.
14. So,   the   question,   which   arises   for
consideration in this appeal, is whether the High
Court was right in dismissing the appeal filed by the
appellant herein.
15. Having   heard   the   learned   counsel   for   the
parties and on perusal of the record of the case, we
are constrained to allow the appeal, set aside the
impugned judgment of the High Court and remand
the case to the High Court for re­hearing of the
appeal in question on merits in accordance with
law.
16. In our opinion, the Division Bench failed to
apply its judicial mind and committed fundamental
jurisdictional errors as detailed below.
8
17. The   first   error   was   that   the   High   Court
proceeded on wrong factual premise that all the five
accused   have   suffered   conviction   under   Section
302/149 IPC read with Section 27 of the Arms Act
by the Additional Sessions Judge. It was not so.
18. The second error was that the appellant (Deep
Narayan Chourasia) along with other three accused
(Lukho   Prasad   Chourasia,   Birendra   Prasad
Chourasia   and   Binod   Prasad   Chourasia)   were
acquitted from the charge of commission of offence
under   Section   302/149   IPC   by   the   Additional
Sessions   Judge   but   were   convicted   only   under
Section 27 of the Arms Act and were sentenced to
undergo   rigorous   imprisonment   for   five   years.
However, as a result of the High Court’s order, they
were convicted under Section 302/149 IPC without
there being any appeal filed by the State against the
order of their acquittal and without there being any
9
notice of enhancement of their sentence issued by
the High Court suo motu to these four accused.
19. In other words and as mentioned above, the
question  before the  High Court  was whether the
appellant   herein   (Deep   Narayan   Chourasia)   and
other   three   accused   were   rightly   convicted   and
sentenced to undergo rigorous imprisonment for five
years   under   Section   27   of   the   Arms   Act   by   the
Additional   Sessions   Judge   or   not.   Instead   of
recording any finding of affirmation of the conviction
or acquittal, as the case may be, the High Court
convicted   all   the   four   accused   under   Section
302/149 IPC also.
20. The third error was that the High Court failed
to   see   that   the   Additional   Sessions   Judge   had
acquitted all the accused under Section 149 IPC, yet
the High Court proceeded to convict all the accused
under   Section   149   IPC   without   there   being   any
appeal filed by the State on this issue.
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21. The   fourth   error   was   that   though   the   High
Court wrongly convicted the appellant along with
three   others   for   the   offence   punishable   under
Section   302/149   IPC,   yet   did   not   award   any
sentence to any of the four accused under Section
302/149 IPC.
22. Since the appellant and other three accused
were acquitted of the charge under Section 302/149
IPC by the Additional Sessions Judge, yet the High
Court convicted them under Section 302/149 IPC
for  the  first  time,  the  sentence  prescribed  under
Section 302/149 IPC was mandatorily required to
be awarded to each convicted accused as provided
under   Section   354(3)   of   the   Code   of   Criminal
Procedure, 1973.
23. The   effect   of   the   impugned   judgment,
therefore, is that though the appellant along with
three   accused   have   suffered   conviction   under
Section 302/149 IPC but without sentence.
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24. Now,   the   next   question,   which   arises   for
consideration though not urged by any parties, is
whether we should set aside the entire impugned
order or set aside only qua the sole appellant herein
because   the   other   four   accused   though   suffered
conviction   under   Section   302/149   IPC   alike   the
appellant herein did not file any appeal against their
conviction and secondly, the other accused ­ Kanhai
Prasad Chourasia whose conviction and sentence
under Section 302/149 IPC read with Section 27 of
the Arms Act was upheld has also not filed any
appeal in this Court.
25. The Constitution Bench of this Court in Durga
Shankar Mehta vs Thakur Raghuraj Singh & Ors.,
AIR   1954   SC   520   examined   the   question   as   to
whether   the   powers   conferred   upon   this   Court
under   Article   136   of   the   Constitution   can   be
exercised  suo motu  to meet the ends of justice in
favour of non­appealing accused.
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26. The learned Judge B.K. Mukherjea (as he then
was and later became CJI) speaking for the Bench
in   his   distinctive   style   of   writing   answered   the
question in affirmative holding that: 
“The powers given by Article 136 of the
Constitution   however   are   in   the   nature   of
special   or   residuary   powers   which   are
exercisable   outside   the   purview   of   ordinary
law,   in   cases   where   the   needs   of   justice
demand interference by the Supreme Court of
the   land.  The  article   itself   is  worded   in  the
widest terms possible. ……. The Constitution
for   the   best   of   reasons   did   not   choose   to
fetter or circumscribe the powers exercisable
under this article in any way……….
This  overriding  power,  which  has  been
vested   in   the   Supreme   Court   under Article
136 of  the  Constitution,   is   in  a  sense  wider
than the prerogative right of entertaining an
appeal   exercised  by   the  Judicial  Committee
of the Privy Council in England.”
27. This   Court   has   since   then   consistently
extended the benefit of the order passed in appeal
under Article 136 of the Constitution  also to those
accused who had not preferred the appeal against
their conviction in the light of the aforementioned
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principle in appropriate cases.[see  Harbans  Singh
vs.  State  of  U.P.  &  Ors., (1982) 2 SCC 101,Raja
Ram & Ors. vs. State of M.P., (1994) 2 SCC 568,
Chellappan Mohandas & Ors. vs. State of Kerala,
1995 Supp(1) SCC 259, Dandu Lakshmi Reddy vs.
State of A.P., (1999) 7 SCC 69,  Anil Rai vs. State
of Bihar, (2001) 7 SCC 318,   Bijoy Singh &  Anr.
vs. State of Bihar, (2002) 9 SCC 147, Gurucharan
Kumar   &   Anr.  vs.  State   of   Rajasthan, (2003) 2
SCC 698,  Suresh  Chaudhary  vs.  State  of   Bihar,
(2003) 4 SCC 128, Akhil Ali Jehangir Ali Sayyed
vs.  State  of  Maharashtra, (2003) 2 SCC 708 and
Pawan Kumar vs. State of Haryana (2003) 11 SCC
241].
28. Having given our anxious consideration to this
question and keeping in view the aforementioned
principle of law laid down in decided cases, we are
of the considered opinion that the entire impugned
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order deservers to be set aside against all the five
accused.
29. In our view, an order, which is based entirely
on   wrong   factual   premise   once   held   illegal   by   a
superior   Court   at   the   instance   of   one   accused,
cannot   be   allowed   to   stand   against   other   nonappealing accused persons also.
30. It is a fundamental principle of law that an
illegality committed by a Court cannot be allowed to
be perpetuated against a person to a  Lis  merely
because he did not bring such illegality to the notice
of   the   Court   and   instead   other   person   similarly
placed   in   the  Lis  brought   such   illegality   to   the
Court’s notice and succeed in his challenge.
31. It will be a travesty of justice delivery system
where   an   accused,   who   is   convicted   of   a   lesser
offence (Section 27 of the Arms Act alone) and was
acquitted of a graver offence (Section 302/149 IPC)
is made to suffer conviction for commission of a
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graver   offence   (Section   302/149   IPC)   without
affording  him  of  any  opportunity  to   defend  such
charge at any stage of the appellate proceedings.
32. Needless to say, if the other four accused had
filed the appeals in this Court, they too would have
got   the   benefit   of   this   order.  A   fortiori,   merely
because they did not file the appeals and the case is
now remanded for re­hearing of the appeal at the
instance of one accused, the benefit of re­hearing of
the appeal cannot be denied to other co­accused. In
other words, the non­appealing co­accused are also
entitled to get benefit of  the order of this Court  and
are,   therefore,   entitled   for   re­hearing   of   their
appeals along with the present appellant.
33. It is for all these reasons, the impugned order
stands set aside also  qua  all the accused persons.
34. In the  light  of  the foregoing discussion, the
appeal   succeeds   and   is   accordingly   allowed.   The
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impugned order is set aside in its entirety. Both the
Criminal   Appeals,   i.e.,   Criminal   Appeal(DB)   No.
77/1994   and  Criminal   Appeal(DB)   No.  112/1994
are restored to their original numbers before the
High Court for their analogues hearing.
35. We request the High Court to decide both the
Criminal   Appeals   on   their   respective   merits   in
accordance with law.
36. Since the appellant­Deep Narayan Chourasia
out of his total jail sentence of five years awarded by
the   Additional   Sessions   Judge   for   commission   of
offence   under   Section   27   of   the   Arms   Act   has
already undergone jail sentence of five months, we
release him (Deep Narayan Chourasia) on bail to the
satisfaction of the concerned Trial Court pending
Criminal Appeals before the High Court.
37. We, however, make it clear that we have not
expressed any opinion to the factual aspect of the
case  on  their  respective  merits, which  is  subject
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matter of the two criminal appeals and, therefore,
the High Court will decide both the appeals on their
respective merits uninfluenced by any observations
made by this Court.
38. A   copy   of   this   order   be   sent   to   other   four
accused persons by the Registry of this Court to
enable them to appear before the High Court for
prosecuting their appeals.
39. The High Court will issue notice to other four
accused   persons   before   hearing   the   appeals,   if
anyone fails to appear.   The High Court may also
consider   appointing   a   lawyer   for   providing   them
legal assistance.       
                                 .………...................................J.
                                [ABHAY MANOHAR SAPRE] 
                           
 …...……..................................J.
                  [DINESH MAHESHWARI]
New Delhi;
February 25, 2019
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