1) whether a retired judge must consent to his appointment; 2) whether a retired judge draws salary after his appointment as an ad hoc judge; 3) whether the appointment of ad hoc judges was to be made with the concurrence of the President

1

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 1236 OF 2019

LOK PRAHARI THROUGH ITS

GENERAL SECRETARY S.N. SHUKLA

IAS (RETD.) .. PETITIONER(S)

VERSUS

UNION OF INDIA & ORS. .. RESPONDENT(S)

J U D G M E N T

1. The intent of our order today is to activate a dormant provision of

the Constitution of India – Article 224A – for the appointment of ad hoc

Judges to deal with the unprecedented situation arising from the backlog

of cases pending in the High Courts, which has now crossed the figure

of 57 lakh coupled with the consistent ratio of vacancies of almost 40

per cent. Any Constitution has to be dynamic, and thus, even if the

intent behind including the provision (as it appears from the Constituent

Assembly Debates) was slightly different, nothing prevents it from

being utilised to subserve an endeavour to solve an existing problem.

For as it is always said, ‘change is the only constant’.

2

2. India was fortunate to have some of the best minds work on the

framing of our Constitution as members of our Constituent Assembly.

The Indian Constitution is an elaborate one, taking cues from the

experience of various democracies. One of the essential aspects of our

Constitution has been the separation of powers between the Judiciary,

Executive, and Legislature.

3. Chapter V of Part VI of the Constitution of India commencing

from Article 214 upto Article 231 relates to the High Courts in the

states. Article 217 provides for the appointment and conditions of the

office of a Judge of the High Court, wherein the current age of

retirement is 62 years. We may say that broadly, it is amongst the

youngest ages of retirement of judges of the apex Court of a state in

comparison with other democracies of the world.

4. Article 224 deals with the appointment of additional and acting

judges. The objective as set out in the Article is to take care of any

temporary increase in business of the High Court, or by reason of

arrears of work therein. The appointment of an additional judge duly

qualified to be the judge of a High Court has to be for a period not

exceeding two years, or as the President may specify. The ground

reality however, remains that while determining the strength of different

3

High Courts, the practice that has been adopted is that about 25% of the

strength consists of additional Judges.

5. In the present case, we are concerned with Article 224A which

reads as under:

"224A. Appointment of retired Judges at sittings of High CourtsNotwithstanding anything in this Chapter, the Chief Justice of a

High Court for any State, may with the previous consent of the

President, request any person who has held the office of a Judge

of that Court or of any other High Court to sit and act as a Judge

of the High Court for that State, and every such person so

requested shall, while so sitting and acting, be entitled to such

allowances as the President may by order determine and have all

the jurisdiction, powers, and privileges of, but shall not otherwise

be deemed to be, a Judge of that High Court:

Provided that nothing in this article shall be deemed to require

any such person as aforesaid to sit and act as a Judge of that High

Court unless he consents so to do."

6. The aforesaid Article begins with a non-obstante clause and was

placed so that a request can be made to any person who has held the

office of a Judge of that Court or of any other High Court, to sit and act

as a judge of the High Court for the state. The second aspect is that

while sitting and acting, such a judge would be entitled to such

allowances as the President may by order determine and have all the

jurisdiction, powers, and privileges of the High Court judge; but for all

other purposes shall not be deemed to be a High Court judge. The

4

proviso stipulates that consent has to be obtained from the judge

concerned.

7. It is the say of the petitioner before us in this public interest

litigation that a large number of vacancies of High Court judges coupled

with mounting arrears is a scenario which requires urgent attention and

one of the modes to deal with both these aspects is resorting to Article

224A of the Constitution of India.

The Historical Perspective:

8. Article 224A was numbered as Article 200 in the Draft

Constitution and discussed by the Constituent Assembly on 7th June

1949. The debate focused on the purpose and duration of the

appointment of retired High Court judges. Three other specific issues

were discussed:

1) whether a retired judge must consent to his appointment;

2) whether a retired judge draws salary after his appointment as an ad

hoc judge;

3) whether the appointment of ad hoc judges was to be made with the

concurrence of the President.

9. Some part of the debates indicate that the retired judge was to be

invited back only for their expertise and experience to decide cases that

5

were particularly difficult or important; and that it may not be advisable

to call retired judges and asked them to clear off the arrears pending

before the High Court. On the other hand, Dr. B.R. Ambedkar had

clarified that the intent behind the appointment of ad hoc judges was as

an alternative to the appointment of temporary or additional judges,

which suggestion had not been accepted by the Constituent Assembly.

Thus, ad hoc judges were not intended to be appointed for an indefinite

length of time. In his words :

"It seems to me that if you are not going to have any temporary or

additional judges you must make some kind of provision for the

disposal of certain business, for which it may not be feasible to

appoint a temporary judge in time to discharge the duties of a

High Court Judge with respect to such matters."1

10. The aforesaid provision, it was emphasized by Dr. Ambedkar,

was borrowed (word for word) from Section 8 of the Supreme Court of

Judicature (Consolidation) Act, 1925 in the UK, and similar provisions

in America. It was explained that the proviso was inserted to avoid a

situation where the refusal of a retired judge to accept the invitation

could be treated as remiss of his conduct.

11. Another important aspect as emerges from the debates, was that it

was the view of Dr. Ambedkar himself that the matter of salary and

1 Speech by Dr. B.R. Ambedkar on 7th June 1949, Constituent Assembly Debates,

Vol. VIII, ¶181. 

6

benefits would be governed by the rules governing pension. Thus, all

benefits would be admissible minus the pension; though the precise

definition of "privileges" of an ad hoc judge was left to the Parliament

to decide. The aspect of concurrence of the President was also debated

and introduced to bring greater transparency in the process.

12. The aforesaid provision for appointment of ad hoc judges was

removed by the Constitution (7th Amendment) Act, 1956. The objective

of that Act clarifies that this was done as the provision for recalling

retired judges for a short period had been found to be neither adequate

nor satisfactory. It was sought to be replaced by the current Article 224,

making provisions for appointment of additional judges to clear off

arrears and for the appointment of acting judges in temporary vacancies.

13. There appears to have been a legislative re-think as the provision

for the appointment of ad hoc judges was reintroduced vide Article

224A by the Constitution (15th Amendment) Act, 1963. The Lok Sabha

debates did not specifically refer to the philosophy behind the reintroduction, but this can be extrapolated from the purpose behind

introducing ad hoc appointments in the Supreme Court of India. The

debates do reflect the two points of view, i.e., a worry about a possible

"demon of patronage" and on the other hand views being expressed that

it was possibly better to call back a retired judge instead of appointing a

7

member of the Bar for a few months. The amendments seeking to

restrict the term of ad-hoc judges to three months was however, negated,

while inserting this provision in the Constitution.

Judicial Views :

14. Now we turn to the aspects arising from the aforesaid provision

being debated in certain judicial precedents.

 15. In Krishan Gopal vs. Shri Prakash Chandra & Ors.

2

 - a

Constitution Bench of this Court (five judges) ruled on the issue of

whether a person sitting and acting as a Judge of the High Court under

Article 224A of the Constitution has the jurisdiction to try an election

petition under Section 80-A of the Representation of the People Act,

1951. Debate arose in the context of a judge of the Madhya Pradesh

High Court who was sitting and acting as a judge of that Court under

Article 224A of the Constitution, and his appointment was to last for a

period of one year or till the disposal of elections petitions entrusted to

him, whichever was earlier. In that context it was observed that if a

person appointed under Article 224A of the Constitution was not

considered to be a judge of the High Court for the purpose of

jurisdiction, powers and privileges, the question of appointing such a

person would never arise. The provision could not thus be rendered a

2 (1974) 1 SCC 128.

8

dead letter. It was clarified that the effect of the provision would create

a deeming fiction and the Court observed:

“15. (…) The person requested while so sitting and acting shall

have all the jurisdiction, powers and privileges of a judge of the

High Court. Such a person shall not otherwise be deemed to be a

judge of that Court. The words "while so sitting, and acting"

show that the person requested not merely has the Jurisdiction,

powers and privileges of a Judge of the, High Court, he also sits

and acts as a Judge of that Court. Question then arises as to what

is the significance of the concluding words "but shall not

otherwise be deemed to be a Judge of that Court". These words,

in our opinion, indicate that in matters not relating to jurisdiction,

powers and privileges the person so requested shall not be

deemed to be a Judge of that Court. The dictionary meaning of

the word "otherwise" is "in other ways", "in other circumstances",

"in other respects". The word "otherwise" would, therefore, point

to the conclusion that for the purpose of jurisdiction, powers and

privileges the person requested shall be a Judge of the concerned

High Court and for purposes other than those of jurisdiction,

powers and privileges, the person requested shall not be deemed

to be a Judge of that Court. It would, for example, be not

permissible to transfer him under Article 222 of the Constitution.

The use of the word "deemed" shows that the person who sits and

acts as a Judge of the High Court under Article 224-A is a Judge

of the said High Court but by a legal fiction he is not to be

considered to be a Judge of the High Court for purposes other

than those relating to jurisdiction, powers and privileges. (…)”

16. On the issue of entitlement of allowances of such an ad hoc

judge, in Justice P Venugopal vs. Union of India and Ors.,

3

it was

opined that an ad hoc judge does not become a part of the High Court

and thus there is no question of computing his pension for the period he

is appointed as an ad hoc judge. Thus, the ad hoc judge would not be

3 (2003) 7 SCC 726.

9

entitled to further pensionary benefits after he demits the Constitutional

office that he holds in terms of Article 217.

17. It may also be appropriate to turn to some of the opinions

expressed on the requirement of consent of a retired Judge. In Union of

India vs. Sankalchand Himatlal Sheth,4

it was observed that the reason

for insisting on consent was that a retired Judge cannot be compelled to

work as an ad hoc judge against his consent. This is because he ceases

to be a judge of the High Court on demitting office at the prescribed age

and is not bound by the conditions of service.

18. It is appropriate to refer to more opinions albeit of the High Court

to know how this particular aspect had been dealt with in the opinion of

the High Court. In Anna Mathew vs. N. Kannadasan though the issue

was not directly in question, the aspect of appointment of an ad hoc

judge under Article 224A of the Constitution had been adverted to.5

 The

context of the view on the expression "ad hoc" is present only in Article

224A and Article 127. In that context, a reference had been made to the

Constitution Bench judgment (five judges) of this Court in Ashok

Tanwar and Anr. vs. State of H.P. and Others.6 Here, there are

observations to the effect that a consultation with the Collegium would

4 (1977) 4 SCC 193.

5 2009 (1) LW 87 (Mad) (¶ 47).

6 (2005) 2 SCC 104

10

not be necessary inasmuch as the Chief Justice is required to

recommend the name of a sitting or a retired judge. However, that was

a case dealing with appointments to the Consumer Disputes Redressal

Commission and in that context, consultation with the Collegium was

thought not necessary. However, if we turn to the judgment in Ashok

Tanwar's case (supra) we find there was actually no real discussion on

Article 224A. What was in question was whether Section 16 of the

Consumer Protection Act, 1986, (which requires the State to appoint a

person in consultation with the Chief Justice of the State) a consultation

with acting Chief Justice was sufficient compliance of the case.

19. The last judicial view we seek to refer to is of the Full Bench of

the High Court of the Judicature at Allahabad in Indian Society of

Lawyers vs. President of India which elaborately dealt with the

interpretation of Article 224A of the Constitution.7

 It was observed that

an ad hoc judge does not fall within Article 216, and that he is not a

judge of the High Court so sitting and acting. The President does not

appoint him, and only gives his consent to the Chief Justice to request a

former judge to sit and act as a judge of the High Court. Thus, the

process of appointment under Clause (1) of Article 217 does not apply

to him. This is also the reason why while dealing with the aspect of

7 (2011) 5 All LJ 455 (FB).

11

monetary emoluments of an ad hoc judge, it has been stated that the

former judge will be entitled to such allowances as the President may by

order determine though he shall have all the jurisdiction, powers, and

privileges but will not otherwise be deemed to be a judge of that High

Court.

The Challenge Before the Judiciary

20. It is trite to say that we have a docket explosion in our country

and that it is difficult for adjudication to take place within a reasonable

period of time. This crisis situation must be tackled. Some innovation is

always the rule of the game. In the present context, maybe a slightly

different view has to be taken in respect of the avowed purpose of

Article 224A providing for ad hoc judges. We say so as we are faced

with the ground reality of almost 40% vacancies remaining in the

regular appointments (both permanent and additional judges) over the

last two years, as we have already mentioned. A number of vacancies

arising every year are barely filled in by fresh appointments. Thus, it

remains an unfulfilled challenge to bring the appointment process to

such numbers as would be able to cover the vacancies existing and

arising. Without endeavouring to blame anyone, a ground reality

remains that there are manifold reasons for the same. 

12

 21. The present system of appointments as envisaged by the

Constitution and as elucidated in the Collegium system makes it clear

that the first step is a recommendation from that High Court by a

collegium of the three senior-most judges presided over by the Chief

Justice of the High Court. This process in turn requires wide

consultation by the Chief Justice of the High Court to identify the

requisite talent, so as to make the recommendations. Contrary to some

portrayed beliefs as if this is an extremely subjective system, every

Chief Justice is actually required to solicit names from different sources

whether it be sitting judges, retired judges, or prominent members of the

Bar. It is from this pool of talent that he selects, after a discussion before

the collegium, the most suitable candidates. It is thus of utmost

importance that the flow of recommendations continues for the

appointment process to work successfully. The vacancies existing and

arising are always known, as a judge demits office in the High Court on

his 62nd birthday. The only exception can be an unforeseen eventuality

or an elevation to the Supreme Court of India. Thus, every endeavour

has to be made to see that the recommendations are made well in

advance while maintaining a balance between recommendations from

the Bar and the subordinate judiciary, about six months in advance as

per norms which were thought to be the appropriate time period within

13

which the whole process of appointment ought to be concluded. This

aspect has been emphasized by us in another connected matter, i.e.,

TP(C) No. 2419/2019.

22. We may also note that on the basis of talent available; considering

that the age profile for elevation from the Bar is between 45 to 55 years,

there may be situations where at one go all recommendations against

vacancies may not be possible to be made. However nothing prohibits -

or rather the exigencies of the appointment process requires -

recommendations to be periodically made without unnecessarily waiting

for the outcome of the first set of recommendations. If this continuing

pipeline operates and even if some recommendations fall by the

wayside, over a reasonable period of time the vacancies can be filled up.

The current situation of vacancies, especially in some of the larger

courts with very few recommendations in the pipeline seems to be the

genesis of this problem.

23. The data placed before us, as drawn from the National Judicial

Data Grid (“NJDG”) shows that five (5) High Courts alone are

responsible for 54% of the pendency of over 57,51,312 cases – the

High Courts of Allahabad, Punjab & Haryana, Madras, Bombay, and

Rajasthan. The Madras High Court has among the highest arrears in the

country of 5.8 lakh cases despite having fewer vacancies than most

14

other High Courts (i.e., 7%). This does not take away from the

requirement of appointing ad hoc Judges but supports the view that even

if the existing vacancies are few, a situation may arise requiring the

expertise of experienced Judges to be appointed as ad hoc Judges. On

the other hand, Calcutta High Court has one of the highest vacancies of

regular appointments (44%) but less than half the arrears as compared to

Madras (2.7 lakh cases). In such a scenario, it is apparently the absence

of strength of the Judges which may be responsible for creating the

arrears and, thus, giving rise to another scenario for appointment of ad

hoc Judges. In Punjab & Haryana High Court, which has a vacancy

problem, the arrears have more than doubled over the last six years.

The NJDG data shows that 56.4% pending cases were filed within the

past five years whereas 40% of the pending cases were filed between 5

to 20 years ago. The primary purpose of appointing ad hoc Judges is to

deal with the latter group of cases that have been pending for over five

years. The table below, put on record by Senior Advocate Mr. Datar

shows the percentage break-up of cases pending before High Courts for

different periods of time as on 04.04.2021:

Particulars Civil % Criminal % Total %

0 to 1

years

622267 15.09 333345 20.49 955612 16.62

1 to 3

years

1054504 25.57 427302 26.27 1481806 25.76

15

3 to 5

years

676249 16.4 221226 13.6 897475 15.6

5 to 10

years

870536 21.11 296231 18.21 1166767 20.29

10 to 20

years

716419 17.37 289887 17.82 1006306 17.5

20 to 30

years

109517 2.63 41916 2.63 151433 2.63

Above 30

years

75047 1.82 16866 1.04 91913 1.6

24. We may only emphasize that one of the most important

administrative functions of the Chief Justice of the High Court is to

identify suitable candidates for elevation as judges of the High Court

and make recommendations in turn. The pipeline of recommendation of

Judges has to be kept flowing so as to cover vacancies.

25. Once the recommendation is made, opinions of State

Governments are solicited as also the input from the Intelligence Bureau

(“IB”). The recommendations are then processed by the Central

Government in all manners, before they are put up to the collegium of

the Supreme Court of India. This is another area of some concern as

there have been many cases which have remained pending for long

periods of time - though in view of certain queries posed in these

judicial proceedings, the situation has now improved. We may only say

that in normal circumstances, the total time period before names are

forwarded to the Supreme Court collegium should not exceed four

16

months after the recommendations are made by the collegium of the

High Court.

26. The Supreme Court collegium, which is the first three judges,

thereafter bestows its consideration on these names after obtaining the

opinions of the consultee judges. Those names which find approval of

the collegium are then recommended for appointment to the Union of

India. At that stage, the Government either proceeds to appoint the

judges or it may have some reservations, in which case it would be

within their right to return the recommendations with the reservations

they have over the appointment. On reconsideration, if the

recommendation is reiterated, in terms of the prevalent legal position,

the appointment has to be made. The delays in this is a matter of

concern as the recommendation of the collegium should not remain

pending for a long period of time. The aforesaid process should be

completed at the earliest. We may note that in some of the courts it is a

challenge to persuade competent and senior lawyers who may have

large practices to accept the position of the judge, and the pendency of

their names for a long period of time does little to encourage them.

27. The fact remains that the aforesaid process has not resulted in

filling up of vacancies for many years. It is not as if the vacant posts are

17

a small fraction, as we have noticed that they have been hovering

around the figure of 40% vacancies.

28. Having sketched out the aforesaid process, two questions arise :

1) how to make this process more efficacious; and

2) till the vacancies are filled up, what is it that can support a quicker

adjudicatory process?

29. The latter undoubtedly requires more number of judges and thus

the present debate has arisen for the purposes of utilization of the

existing Article 224A of the Constitution to appoint ad hoc judges in the

context of a large number of existing vacancies and pending arrears.

Memorandum of Procedure:

30. The Union of India vide additional affidavit dated 13.04.2021 had

placed before us a Memorandum of Procedure (“MoP”), which was

prepared in the year 1998 in pursuance to the judgment of the Supreme

Court in Supreme Court Advocate-on-Record Association v. Union of

India8

 (Second Judges case) read with the advisory opinion rendered in

Special Reference No.1/19989

 for “attendance of retired Judges at

sittings of High Courts.” It is the say of the Union of India that the

appointment of retired Judges under Article 224A should be a

8 (1993) 4 SCC 441

9 (1998) 7 SCC 739

18

collaborative process between the Executive and the Judiciary and the

procedure prescribed in para 24 may be followed till it is amended. The

relevant paragraph of the MoP reads as under:

“24. Under Article 224A of the Constitution, the Chief Justice of

a High Court may at any time, with the previous consent of the

President, request any person who has held the office of a Judge

of that court or of any other High Court to sit and act as a Judge

of the High Court of that State. Whenever, the necessity for such

an appointment arises, the Chief Justice of India will after

obtaining the consent of the person concerned, communicate to

the Chief Minister of the State the name of the retired Judge and

the period for which he will be required to sit and act as Judge of

the High Court. The Chief Minister will, after consultation with

the Governor, forward his recommendation to the Union Minister

of Law, Justice and Company Affairs. The Union Minister of

Law, Justice and Company Affairs would then consult the Chief

Justice of India in accordance with the prescribed procedure. On

receipt of CJI’s advice, the same would be put up to the Prime

Minister, who will then advise the President as to the person to be

appointed to it and act as a Judge of the High Court. As soon as

the President gives his consent to the appointment, the Secretary

to the Government of India in the Department of Justice will

inform the Chief Justice of the High Court and the Chief

Minister(s) and will issue the necessary notification in the Gazette

of India.”

31. We may notice that the subsequent endeavour to introduce the

National Judicial Appointments Commission (‘NJAC’) through a

constitutional amendment could not withstand the constitutional

challenge in Supreme Court Advocates-on-Record Association & Anr. v.

Union of India (NJAC case)10

. In this, it was observed that the process

of amendment of the MoP could be finalised by the Executive in

10 (2016) 5 SCC 1

19

consultation with the Chief Justice of India. In this behalf, the final

view of the Judiciary was sent after discussion and there is no change in

the aforesaid. The MoP has been circulated to the Chief Justices of the

High Courts.

Law Commission Reports

32. The path we seek to traverse is supported by the Law

Commission Reports. In fact, the 124th report of the Law Commission

delivered in 1988 dealt with the aspect that a fresh look was required for

High Court arrears. In that context, it has been recognized that retired

judges have several decades of adjudicatory experience, and their talents

could be utilized to dispose of mounting arrears. On account of their

experience, they would be quick in disposing cases and being

unburdened with administrative or admission work, they could spend

their entire time hearing old matters. Thus, the appointment of retired

judges as ad-hoc judges was seen as a part of a "multipronged attack"

on arrears, and was strongly recommended.

33. This is not a first time that this aspect was noted. The 79th Report

of the Law Commission of 1979 had suggested recourse to this Article

to sub-serve the said objective. We may, however, notice that in 245th

Report of 2014, some concerns were expressed about this process on

20

account of the appointment being for a short period and the

accountability in the functioning and performance of ad-hoc judges.

34. We may notice that in the 188th Report of the Law Commission

of 2003, that in the interest of clearing arrears in the High Court in

various types of cases, including criminal matters, it was felt that it was

the need of the hour to make appointments under Article 224A of the

Constitution. The concern was to bring the arrears within manageable

proportions.

Some other views

35. In the recently published treatise, a view had been expressed that

one great advantage of appointing ad-hoc judges under Article 224-A is

that it provides for a ready-made pool of known judicial talent which

can be relied upon to be competent, clean and efficient. This can be an

effective weapon to deal with the disposal of forgotten and pending

cases, more so in the context of inordinate delay in fresh judicial

appointments.11

36. In the Chief Justices’ Conference held on 22nd and 23rd April

2016, a resolution was adopted dealing with filling up of vacancies in

11 A. M. Singhvi, “Beating the Backlog Reforms in Administration of Justice in

India,” in S. Khurshid et. al., (eds.) Judicial Review- Process, Powers, and Problems

(Essays in Honour of Upendra Baxi), (Cambridge University Press 2020), page 53.

21

High Courts and to address the problem of arrears in criminal and civil

cases de hors Article 224A where it was perceived to be a course to

follow. The Resolution states as under:

"Resolved further that, keeping in view the large pendency of

civil and criminal cases, especially criminal appeals where

convicts are in jail and having due regard the recommendation

made by the 17th Law Commission of India in 2003, the Chief

Justices will actively have regard to the provisions of Article

224A of the Constitution as a source for enhancing the strength of

Judges to deal with the backlog of cases for a period of two years

or the age of sixty five years, whichever is later until a five plus

zero pendency is achieved."

Article 224A earlier recourse:

37. We have already noticed that Article 224A has largely been a

dormant provision with only three recorded instances of its invocation.

Justice Suraj Bhan of the Madhya Pradesh High Court was appointed as

an ad hoc Judge on 23.11.1972 after he had demitted office on 2.2.1971.

His appointment was for a period of one year or till the disposal of

election petitions entrusted to him, whichever was earlier. Thus, it was

with a specific purpose.

38. Justice P. Venugopal of the Madras High Court was a Judge for a

short period of less than three years and close to his retirement, he was

appointed to a Commission of Inquiry to inquire into certain incidents

that took place in Coimbatore town on 23.7.1981 and again appointed to

22

a one-man commission to inquire into incidents of communal riots by

order dated 22.3.1982. He was appointed to the post of ad hoc Judge in

the year 1982 and yet again his term was renewed for a period of one

year from 19.8.1983.

39. Most recently in the year 2007, Justice O.P. Srivastava was

appointed as an ad hoc Judge in the Allahabad High Court. He was one

of the Members of the Special Bench constituted for hearing of the

Ayodhya matter with the avowed object of facilitating continued and

continuous hearing of the matter.

The Challenge Ahead:

40. We have little doubt that challenge of mounting arrears and

existing vacancies requires recourse to Article 224A of the Constitution

to appoint ad-hoc judges which is a ready pool of talent, (of course

subject to their concurrence) as a methodology especially for clearing

the old cases. The existing strength of permanent and additional judges

can be utilized for current and not so old cases. The ad-hoc judges are

absolved even from the administrative responsibilities. They can

concentrate on old cases which are stuck in the system and may require

greater experience. For example, it is often perceived that a Regular

23

Second Appeal is an area of concern and the more experienced judges

are able to attend to this area with more promptness.

41. We see no reason why there should be an unending debate of

taking recourse to Article 224A when such a provision exists in the

Constitution. It should not be made a dead letter, more so when the need

is so pressing.

42. We are unable to accept the plea of the learned Attorney General

that though the Government of India may not have any in principle

opposition to the aforesaid, first the existing vacancies should be filled

in. In our view, this would be a self-defeating argument because the

very reason why at present Article 224A has been resorted to is nonfilling up of vacancies and the mounting arrears. We may, however,

hasten to add that the objective is not to appoint ad-hoc judges instead

of judges to be appointed to the regular strength of the High Court

(apprehension expressed by Mr. Vikas Singh, Senior Counsel, President

of the Supreme Court Bar Association). The very provision makes it

clear that it does not in any way constrain or limit the regular

appointment process and consent of the retired judge is sought to sit and

act as a judge of the High Court. One may say that this largely a

transitory methodology till all the appointment processes are in place,

24

though that may not be the only reason to take recourse to the aforesaid

Article.

43. We also have no doubt that we would not like to encourage an

environment where Article 224A is sought as panacea for inaction in

making recommendations to the regular appointments. In order to

prevent such a situation, we are of the view that certain checks and

balances must be provided so that Article 224A can be resorted to only

on the process having being initiated for filling up of the regular

vacancies and awaiting their appointments. We are thus of the view that

there should not be more than 20% of the vacancies for which no

recommendation has been made for this Article to be resorted to. We

put this figure not out of the blue but looking to the entire scenario

where sometimes it may be difficult to find the requisite talent at a

particular stage which may have to await some time period. However,

certainly, it cannot be countenanced that no or very few

recommendations are made for a large number of vacancies by resorting

to Article 224A.

44. We may have to turn to the aspect of the process to be followed

for making present appointments. The Constitution of India did not

provide for a collegium system. This is an aspect which emerged from

25

the cases of SP Gupta v. Union of India,

12 Supreme Court Advocates

on Record v. Union of India,

13 and in Re: Special Reference 1 of

199814 and its modified forms has remained in existence since then. The

endeavour of the Government to bring in the National Judicial

Appointments Commission did not pass the muster of the constitutional

mandate and was struck down in Supreme Court Advocates-on-Record

Association and Anr. v. Union of India.

15

 Thus, the collegium of the

Supreme Court has an important role to play in the appointment of

judges of the High Court. In the aforesaid conspectus, the exercise by

the Chief Justice of the High Court, the authority vested under Article

224A of the Constitution would require a prior consent from the judge

concerned, and that recommendation in turn has to be routed through

the collegium of the Supreme Court. Of course, the previous consent of

the President of India (as advised) is necessary - but looking to the very

nature of this appointment, which is of a retired judge who for his

judicial appointment has gone through the complete process, time

period of maximum three months is more than sufficient to carry the

process through all stages. This in turn would be facilitated if the Chief

12 (1982) 2 SCR 365.

13 (1993) 4 SCC 441.

14 AIR 1999 SC 1.

15 2015 11 SCALE 1.

26

Justice of the High Court takes the initial steps at least three months in

advance so that there is no unnecessary delay in this regard.

45. We may add here that we are quite conscious of the difference in

the manner of appointment of permanent and additional Judges, and ad

hoc judges in the High Court. Thus, two scenarios of appointment of

Judges arise under Article 217 of the Constitution of India and the

appointment has to be by the President by warrant under his hand and

seal (Article 224 refers to the appointment of Additional and acting

Judges). On the other hand, the appointment of a retired Judge as an ad

hoc Judge of the High Court under Article 224A of the Constitution

albeit forming part of the same Chapter V of the Constitution of India

begins with a non obstante clause and provides for the Chief Justice of a

High Court to request any person who has held the office of a Judge of

that Court or any other High Court to sit and act as a Judge of the High

Court for that State. On the consent of the President being granted, the

Secretary in the Government of India, Department of Justice is to

inform the Chief Justice of the High Court and to issue necessary

notification in the Gazette of India as per the MoP. For clarity we may

add that while the judicial pronouncements of the Supreme Court are

law declared by this Court under Article 141 of the Constitution of

India, the MoP has been framed under an administrative discussion and

27

cannot be said to be law declared by this Court. It can always be

varied.

46. In carrying out the aforesaid exercise, the Chief Justice of the

High Court would have to bestow his consideration on the aspect as to

who would be the suitable judge to be appointed as an ad-hoc judge and

what is the time period for which the person has to be so appointed.

This in turn will depend on the data of pendency of the different nature

of cases, and the expertise of the judge especially in the areas where

there is a large volume of pendency - as the objective is to clear the old

cases which are stuck in the system. Such consideration of objective

criteria becomes necessary to have transparency in the system.

47. In the aforesaid context, we called upon various senior counsels

assisting this Court to look into this matter and Mr. Arvind Datar,

learned senior counsel to coordinate it so that we can have common

suggestions before us to assist us in formulating the modalities for

recourse to Article 224A.

48. On the aspect of allowances as admissible to an ad-hoc judge to

be determined by the President of India, it is trite to say that despite the

voluntary nature of work no one would like to accept allowances less

than what are admissible to a sitting judge. Thus, we are of the view that

the same monetary benefits and privileges should be payable/available

28

to an ad-hoc judge as admissible to a judge minus the pension. That can

be the only methodology we consider appropriate to follow.

49. A Common theme of the various suggestions placed before us -

whether by Mr. Datar, the petitioners or other counsels - is that there is a

definitive need for activating the provision. There are differences of

perception with respect to different aspects such as, the trigger point to

activate the provision, suggestion of an embargo situation, the

methodology of appointment, the role of ad hoc Judges, age limit,

tenure of appointment, etc. We have, thus, heard learned counsels on

these various aspects. A common need has been felt to give guidelines

to facilitate some element of uniformity in taking recourse tothis

dormant provision. It is also a common ground, with which we agree,

that while laying down guidelines, a periodic review of this experiment

will be required and there may be occasions to suitably modify the

guidelines which we propose to lay down. Thus, it would not be

appropriate to close the present proceedings but instead a concept of

continuing mandamus would be appropriate in the present proceedings

to work out the most effective method of taking recourse to Article

224A of the Constitution.

50. The principle of continuing mandamus forms part of our

Constitutional jurisprudence and the term was used for the first time in

29

Vineet Narain v. Union of India16. The practice of issuing continuing

directions to ensure effective discharge of duties was labelled as a

“continuing mandamus”. We may note that unlike a writ remedy, a

continuing mandamus is an innovative procedure not a substantive one

which allows the Court an effective basis to ensure that the fruits of a

judgment can be enjoyed by the right-bearers, and its realisation is not

hindered by administrative and/or political recalcitrance. It is a means

devised to ensure that the administration of justice translates into

tangible benefits.

51. We have given deep thought to the slightly different perspectives

placed before us by way of affidavits by the different High Courts and

Union of India. While emphasising that recourse to Article 224A is the

necessity of the day, and without inhibiting the expanse of the powers

conferred on the Chief Justice of the High Court as per the Constitution,

it would be in the fitness of things to lay down some guidelines for

assistance of the Chief Justices of the High Courts and to make the

provision a ‘live letter’.

52. We have, in this behalf, considered the various aspects touched

upon in the additional affidavit of the Union of India dated 13.4.2021.

In fact, the response note of Mr. Datar is based on these different

16 (1998) 1 SCC 226

30

parameters and is intended to facilitate a cogent flow to the guidelines

sought from us. We may notice that it is a common case that the present

proceedings are not adversarial but a method to make the provisions of

Article 224A into a practical and working arrangement. We now

proceed to issue the guidelines.

Guidelines:

i. Trigger Point for activation:

53. The discretion of the Chief Justice of the High Court under

Article 224A is not constrained but as stated, some general guidelines

are required to be laid so that power conferred under the said provision

is exercised in a transparent manner. The Trigger Point cannot be

singular and there can be more than one eventuality where the it arises –

a. If the vacancies are more than 20% of the sanctioned strength.

b. The cases in a particular category are pending for over five

years.

c. More than 10% of the backlog of pending cases are over five

years old.

d. The percentage of the rate of disposal is lower than the

institution of the cases either in a particular subject matter or

generally in the Court.

31

e. Even if there are not many old cases pending, but depending

on the jurisdiction, a situation of mounting arrears is likely to

arise if the rate of disposal is consistently lower than the rate

of filing over a period of a year or more.

ii. Embargo Situtation:

54. We have already observed that the recourse to Article 224A is not

an alternative to regular appointments. In order to emphasise this

aspect, we clarify that if recommendations have not been made for more

than 20% of the regular vacancies then the trigger for recourse to Article

224A would not arise.

55. In this behalf we may take note of the data placed before us

which would suggest that there are only ten High Courts having fewer

than 20% vacancies as on 1.4.2021; seven High Courts having fewer

than 10% vacancies in permanent appointments but then there may be

additional Judges and there are cases which are in the pipeline. Thus,

the parameter we have adopted is that, at least, the recommendations

should have been made leaving not more than 20% vacancies in order to

take recourse to Article 224A.

32

 iii. Pre-recommendation process:

a. Past performance of recommendees in both quality and

quantum of disposal of cases should be factored in for

selection as the objective is to clear the backlog.

b. The Chief Justice should prepare a panel of Judges and former

Judges. Naturally this will be in respect of Judges on the anvil

of retirement and normally Judges who have recently retired

preferably within a period of one year. However, there can be

situations where the Judge may have retired earlier but his

expertise is required in a particular subject matter. There may

also be a scenario where the Judge(s) may prefer to take some

time off before embarking upon a second innings albeit a short

one. In the preparation of panel, in order to take consent and

take into account different factors, a personal interaction

should be held with the Judge concerned by the Chief Justice

of the High Court.

 iv. Methodology of Appointment:

56. We have already noticed that para 24 of the MoP lays down a

procedure for appointment under Article 224A of the Constitution. We

have also noticed that it is not law laid down in this behalf under Article

33

141 of the Constitution but as a first step it may be more appropriate to

follow this procedure laid down in para 24 of the MoP to see the

progress made and impediments, if any. We may, however notice that

since the Judges are already appointed to the post through a warrant of

appointment, the occasion to refer the matter to the IB or other agencies

would not arise in such a case, which would itself shorten the time

period.

 v. Time to complete the process:

57. The requirement that recommendations should be made six

months in advance by the Chief Justice of the High Court emanates

from the concept that the said period should be required to complete the

process in case of a regular appointment of a Judge under Article 217 or

224 of the Constitution of India. In view of number of aspects not

required to be adverted to for appointment under Article 224A we are of

the view that a period of about three months should be sufficient to

process a recommendation and, thus, ideally a Chief Justice should start

the process three months in advance for such appointment.

 vi. Tenure of Appointment:

58. The tenure for which an ad hoc Judge is appointed may vary on

the basis of the need but suffice to say that in order to give an element

34

of certainty and looking to the purpose for which they are appointed,

generally the appointment should be for a period between two to three

years.

 vii. Number of Appointments:

59. We are also of the view that, at least, for the time being dependent

on the strength of the High Court and the problem faced by the Court,

the number of ad hoc Judges should be in the range of two to five in a

High Court.

 viii. Role of ad hoc Judges:

60. The primary objective being to deal with long pending arrears,

the said objective will be subserved by assigning more than five year

old cases to the ad hoc Judges so appointed. However, this would not

impinge upon the discretion of the Chief Justice of the High Court, if

exigencies so demand for any particular subject matter even to deal with

the cases less than five years old, though the primary objective must be

kept in mind.

61. One of the issues raised is of constitution of Benches of an ad hoc

Judge and sitting Judge in matters to be heard by Division Bench and as

to who would preside. We are of the view that the Division Bench, at

present, may be constituted only of ad hoc Judges because these are old

35

cases which need to be taken up by them. We also make it clear that

because of the very nature of the profile and work to be carried out by

ad hoc Judges, it would not be permissible for an ad hoc Judge to

perform any other legal work whether it be advisory, of arbitration or

appearance.

 ix. Emoluments and Allowances:

62. We have already discussed in the substantive part of the order that

the emoluments and allowances of an ad hoc Judge should be at par

with a permanent Judge of that Court at the relevant stage of time minus

the pension. This is necessary to maintain the dignity of the Judge as

also in view of the fact that all other legal work has been prohibited by

us in terms of the aforesaid guidelines.

63. We also make it clear that emoluments to be paid would be a

charge on the Consolidated Fund of India consisting of salary and

allowances. We may also clarify that it is a misconceived notion that

there will be an additional burden on the State Government if some

perquisites are made available to ad hoc Judges by the State

Government. The trigger for appointment of ad hoc Judges is the very

existence of vacancies and had these vacancies been filled in, the State

Government would have incurred these expenses anyhow. In any case

36

there is a limit placed on the number of ad hoc Judges and, thus, the

existence of vacancies actually results in the savings for the State

Government(s), which would otherwise be amount expended as their

allowances and perks.

64. We make it clear that when we refer to

allowance/perks/perquisites all benefits as are admissible to the

permanent/additional Judge(s) would be given to the ad hoc Judge(s).

For clarity we may say that as far as housing accommodation is

concerned, either the rent-free accommodation should be made

available or the housing allowance should be provided on the same

terms and conditions. For all practical purposes the ad hoc Judge would

receive the same emoluments, allowances and benefits as are admissible

to the permanent/additional Judges. We may note that the Second

Schedule, Part D of the Constitution of India stipulates the emoluments

and benefits that have to be conferred on the judges of the Supreme

Court and of the High Courts.

Conclusion:

65. We have taken the first step with the hope and aspiration that all

concerned would cooperate and retiring/retired Judges would come

forth and offer their services in the larger interest of the Judiciary. The

37

guidelines cannot be exhaustive and that too at this stage. If problems

arise, we will endeavour to iron them out. We must set aside

apprehensions, if any, to chart this course and we are confident that

there will be a way forward.

66. In view of the requirements of a continuous mandamus to see

how a beginning has been made, list after four months calling upon the

Ministry of Justice to file a report in respect of the progress made.

………………………….CJI

 [S.A. BOBDE]

…………………………….J.

 [SANJAY KISHAN KAUL]

…………………………….J.

 [SURYA KANT]

NEW DELHI.

APRIL 20, 2021.

GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS

REPORTABLE

 IN THE SUPREME COURT OF INDIA

 ORIGINAL JURISDICTION

 SUO MOTO WRIT (CRL) NO.(S) 1/2017

IN RE: TO ISSUE CERTAIN GUIDELINES REGARDING INADEQUACIES

AND DEFICIENCIES IN CRIMINAL TRIALS ….PETITIONER(S)

 VERSUS

THE STATE OF ANDHRA PRADESH & ORS. ....RESPONDENT(S)

ORDER

1. This suo motu proceeding under Article 32 was initiated during the course of

hearing of a criminal appeal1

. The Court noticed common deficiencies which occur in

the course of criminal trials and certain practices adopted by trial courts in criminal

proceedings as well as in the disposal of criminal cases and causes. These related,

amongst others, to the manner in which documents (i.e. list of witnesses, list of exhibits,

list of material objects) referred to are presented and exhibited in the judgment, and the

lack of uniform practices in regard to preparation of injury reports, deposition of

witnesses, translation of statements, numbering and nomenclature of witnesses, labeling

of material objects, etc. These very often lead to asymmetries and hamper appreciation

of evidence, which in turn has a tendency of prolonging proceedings, especially at the

appellate stages.

2. The Court had noticed that on these prominent aspects, rules appeared to have

been formulated by certain High Courts, whereas many other High Courts have not

framed such rules. This has led to a lack of clarity and uniformity in regard to the

1Crl.A.400/2006 & connected matters

1

presentation of trial court proceedings and records, for the purpose of appreciation at the

High Court level and eventually, before this court.

3. By an elaborate order dated 30.03.2017, this Court noted various salient aspects

and flagged inadequacies in the practices and rules of High Courts by taking a cue from

existing rules in some High Courts2

. After noticing about 13 issues, the Court felt the

desirability of a uniform approach – in description of exhibits, manner and description

of recording of statements of witnesses, labeling of material objects, and so on. The

Court therefore, issued notice to the Registrar Generals of all High Courts, Chief

Secretaries and Administrators of States and Union Territories as well as Advocates

General, Additional Advocates Generals and Senior Standing Counsel of all states and

Union Territories. By a later order dated 07.11.2017, the Court appointed Mr. Sidharth

Luthra and Mr. R. Basanth, Senior Advocates as amici curiae. On 20.02.2018, Mr. K.

Parameshwar, learned counsel was also appointed as amicus curiae to assist the senior

counsel who were earlier appointed as amici curiae. All concerned State Governments

and Union Territories as well as High Courts through their Registrar Generals were

called upon to submit their responses along with suggestions.

4. By January 2019, 15 States/Union Territories and 21 High Courts had filed

responses before this court. Based upon these responses, the amici curiae evolved a

consultation paper, which inter alia contained draft rules. The draft rules were circulated

to all parties by a letter dated 18.02.2019. Written responses were invited from

stakeholders and a colloquium was convened for this purpose in New Delhi at the India

International Centre, on 30.03.2019. The colloquium was attended by representatives of

different States/Union Territories and their respective High Courts.

5. After considering the suggestions made during the colloquium, the amici curiae

submitted the “Draft Rules of Criminal Practice, 2020” for the consideration of this

court. While framing Draft Rules, due care was taken to ensure uniformity and at the

same time to recognize the diverse practices among the various state authorities and

2Kerala Criminal Rules of Practice, 1982; Andhra Pradesh Criminal Rules of Practices and Circular Orders, 1990 etc.

2

High Courts in the country. The draft rules are compliant and not in any way repugnant

to the Code of Criminal Procedure, 1973. Many suggestions made as practice directions

reflect the mandatory provisions of the Code of Criminal Procedure, 1973.

6. By later orders dated 27.10.2020 and 19.01.2021, the High Courts were once

again directed to file their responses to the Draft Rules of Criminal Practice, 2020.

Pursuant to that order, all High Courts filed their responses and the summaries of the

responses.

7. During the hearing, this court noticed that most of the suggestions had been

agreed except in regard to a few aspects. Some High Courts, while accepting the Draft

Rules also sought to elaborate and supplement them, which is a welcome step.

8. The High Courts unanimously welcomed the suggestion of separating the

prosecution from the investigation, (i.e. Rule 18 in the Draft Rules, 2020) which

provides that a separate team of lawyers, distinct from Public Prosecutors must advise

the police during the investigation. However, as pointed out by many High Courts, this

is a step that should be actively pursued by the State Governments. Similarly, the High

Courts welcomed the uniform manner in which body sketches, spot panchnamas etc.

are to be brought on record (Draft Rules 1-4). However, they state that the onus for the

implementation of these Rules is on the investigation agencies.

9. This court is of the opinion that a perusal of the responses indicates that the High

Courts have indicated their reservations to certain draft rules. These are as follows:

(1)translations of deposition [Draft Rule 6(i)(ii)] – High Court of Madhya

Pradesh, Kerala, Tamil Nadu.

(2)references to accused/witnesses/material objects (Draft Rule 9) – Allahabad,

MP, Tripura, Kerala, Calcutta – The High Courts have suggested that along

with the numbers assigned to the witness, accused etc., names may also be

used to avoid confusion.

(3)The rule requiring day to day trial (Rule 19(i)) – Madhya Pradesh, Manipur,

Tripura.

3

10. During the hearing of these proceedings, the court took into consideration the

viewpoints, on behalf of High Courts, where there was either a divergence in the

opinion about the practice to be adopted, or some reservation.

11. The amici pointed out that at the commencement of trial, accused are only

furnished with list of documents and statements which the prosecution relies on and are

kept in the dark about other material, which the police or the prosecution may have in

their possession, which may be exculpatory in nature, or absolve or help the accused.

This court is of the opinion that while furnishing the list of statements, documents and

material objects under Sections 207/208, Cr. PC, the magistrate should also ensure that

a list of other materials, (such as statements, or objects/documents seized, but not relied

on) should be furnished to the accused. This is to ensure that in case the accused is of

the view that such materials are necessary to be produced for a proper and just trial, she

or he may seek appropriate orders, under the Cr. PC.3

 for their production during the

trial, in the interests of justice. It is directed accordingly; the draft rules have been

accordingly modified. [Rule 4(i)]

12. It was pointed out by learned amici that the practice adopted predominantly in all

trials is guided by the decision of this court in Bipin Shantilal Panchal v. State of

391. Summons to produce document or other thing.

(1) Whenever any Court or any officer in charge of a police station considers that the production of any document

or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this

Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in

whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce

it, at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have

complied with the requisition if he causes such document or thing to be produced instead of attending personally to

produce the same.

(3) Nothing in this section shall be deemed-

(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872 ), or the Bankers' Books Evidence

Act, 1891 (13 of 1891) or

(c)to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or

telegraph authority.

4

Gujarat4

 with respect to objections regarding questions to be put to witnesses. This

court had termed the practice of deciding the objections, immediately as “archaic” and

indicated what it felt was an appropriate course:

“It is an archaic practice that during the evidence collecting stage,

whenever any objection is raised regarding admissibility of any material in

evidence the court does not proceed further without passing order on such

objection. But the fall out of the above practice is this: Suppose the trial

court, in a case, upholds a particular objection and excludes the material

from being admitted in evidence and then proceeds with the trial and

disposes of the case finally. If the appellate or revisional court, when the

same question is re-canvassed, could take a different view on the

admissibility of that material in such cases the appellate court would be

deprived of the benefit of that evidence, because that was not put on record

by the trial court. In such a situation the higher court may have to send the

case back to the trial court for recording that evidence and then to dispose

of the case afresh. Why should the trial prolong like that unnecessarily on

account of practices created by ourselves. Such practices, when realised

through the course of long period to be hindrances which impede steady

and swift progress of trial proceedings, must be recast or re-moulded to

give way for better substitutes which would help acceleration of trial

proceedings.

When so recast, the practice which can be a better substitute is this:

Whenever an objection is raised during evidence taking stage regarding

the admissibility of any material or item of oral evidence the trial court can

make a note of such objection and mark the objected document tentatively

as an exhibit in the case (or record the objected part of the oral evidence)

subject to such objections to be decided at the last stage in the final

judgment. If the court finds at the final stage that the objection so raised is

sustainable the judge or magistrate can keep such evidence excluded from

consideration. In our view there is no illegality in adopting such a course.

(However, we make it clear that if the objection relates to deficiency of

stamp duty of a document the court has to decide the objection before

proceeding further. For all other objections the procedure suggested above

can be followed.) The above procedure, if followed, will have two

advantages. First is that the time in the trial court, during evidence taking

stage, would not be wasted on account of raising such objections and the

court can continue to examine the witnesses. The witnesses need not wait

4(2001) 3 SCC 1

5

for long hours, if not days. Second is that the superior court, when the

same objection is re-canvassed and reconsidered in appeal or revision

against the final judgment of the trial court, can determine the correctness

of the view taken by the trial court regarding that objection, without

bothering to remit the case to the trial court again for fresh disposal. We

may also point out that this measure would not cause any prejudice to the

parties to the litigation and would not add to their misery or expenses.”

13. It was argued by amici that the procedure, whereby the courts record answers to

all questions, regardless of objections, leads to prolonged and lengthy cross

examination, and more often than not, irrelevant facts having no bearing on the charge

or the role of the accused, are brought on record, which often result in great prejudice. It

is pointed out that due to the practice mandated in Bipin Shantilal Panchal (supra), such

material not only enters the record, but even causes prejudice, which is greatly

multiplied when the appellate court has to decide the issue. Frequently, given that trials

are prolonged, the trial courts do not decide upon these objections at the final stage, as

neither counsel addresses arguments. Therefore, it is submitted that the rule in Bipin

Shantilal Panchal (supra) requires reconsideration.

14. During a trial, in terms of Section 132, every witness is bound to answer the

questions she or he is asked; however, that is subject to the caveat that he or she is

entitled to claim silence, if the answers incriminate him or her, by virtue of Article 20

(3) of the Constitution. Every judge who presides over a criminal trial, has the authority

and duty to decide on the validity or relevance of questions asked of witnesses. This is

to be found in Section 148 Cr. PC, which reads as follows:

“148. Court to decide when question shall be asked and when witness

compelled to answer. –– If any such question relates to a matter not

relevant to the suit or proceeding, except in so far as it affects the credit of

the witness by injuring his character, the Court shall decide whether or not

the witness shall be compelled to answer it, and may, if it thinks fit, warn

the witness that he is not obliged to answer it.

6

In exercising its discretion, the Court shall have regard to the following

considerations: ––

(1) such questions are proper if they are of such a nature that the truth of

the imputation conveyed by them would seriously affect the opinion of the

Court as to the credibility of the witness on the matter to which he testifies;

(2) such questions are improper if the imputation which they convey relates

to matters so remote in time, or of such a character, that the truth of the

imputation would not affect, or would affect in a slight degree, the opinion

of the Court as to the credibility of the witness on the matter to which he

testifies;

(3) such questions are improper if there is a great disproportion between

the importance of the imputation made against the witness’s character and

the importance of his evidence;

(4) the Court may, if it sees fit, draw, from the witness’s refusal to answer,

the inference that the answer if given would be unfavourable”

15. Apart from Section 148, there are other provisions of the Evidence Act (Sections

149-154) which define the ground rules for cross examination. During questioning, no

doubt, the counsel for the party seeking cross examination has considerable leeway;

cross examination is not confined to matters in issue, but extends to all relevant facts.

However, if the court is not empowered to rule, during the proceeding, whether a line of

questioning is relevant, the danger lies in irrelevant, vague and speculative answers

entering the record. Further, based on the answers to what (subsequently turn out to be

irrelevant, vague or otherwise impermissible questions) more questions might be asked

and answered. If this process were to be repeated in case of most witnesses, the record

would be cluttered with a jumble of irrelevant details, which at best can be distracting,

and at worst, prejudicial to the accused. Therefore, this court is of opinion that the view

in Bipin Shantilal Panchal should not be considered as binding. The presiding officer

therefore, should decide objections to questions, during the course of the proceeding, or

failing it at the end of the deposition of the concerned witness. This will result in decluttering the record, and, what is more, also have a salutary effect of preventing

frivolous objections. In given cases, if the court is of the opinion that repeated

objections have been taken, the remedy of costs, depending on the nature of obstruction,

7

and the proclivity of the line of questioning, may be resorted to. Accordingly, the

practice mandated in Bipin Shantilal Panchal shall stand modified in the above terms.

16. Counsel appearing for the states and High Courts submitted that the provision in

the draft rules, requiring that trials should be conducted on a day-to-day manner, cannot

be complied with. It was argued that courts have to, more often than not, postpone or

adjourn cases due to non-availability of witnesses, or on account of absence of defense

counsel, or the prosecutor. The learned amici submitted that given that trial begins after

charges have been framed, the prosecution witnesses should be available on the dates of

trial, for the simple reason that they are relied on for proving the charges. It was

submitted that this court should indicate that as far as practicable, the trial court should

carry out before hand, sequencing of witness deposition, in terms of eyewitnesses, other

material witnesses, formal witnesses, expert witnesses etc., and also factor in some

specific date or dates, so that effective depositions are recorded on every date of hearing

so fixed.

17. This court is of the opinion that the courts in all criminal trials should, at the

beginning of the trial, i.e. after summoning of the accused, and framing of charges, hold

a preliminary case management hearing. This hearing may take place immediately after

the framing of the charge. In this hearing, the court should consider the total number of

witnesses, and classify them as eyewitness, material witness, formal witness (who

would be asked to produce documents, etc) and experts. At that stage, the court should

consider whether the parties are in a position to admit any document (including report of

experts, or any document that may be produced by the accused, or relied on by her or

him). If so, the exercise of admission/denial may be carried out under Section 294, Cr.

PC, for which a specific date may be fixed. The schedule of recording of witnesses

should then be fixed, by giving consecutive dates. Each date so fixed, should be

scheduled for a specific number of witnesses. However, the concerned witnesses may be

bound down to appear for 2-3 consecutive dates, in case their depositions are not

concluded. Also, in case any witness does not appear, or cannot be examined, the court

8

shall indicate a fixed date for such purpose. The recording of deposition of witnesses

shall then be taken up, after the scheduling exercise is complete. This court has

appropriately carried out necessary amendments to the Draft Rules.

18. It was submitted by the amici that as regards the subject matter relating to the first

three Draft Rules, the state and police authorities have to carry out necessary and

consequential amendments to the police manuals, and other related instructions, to be

followed by each state. Counsel appearing for states and union territories have assured

that suitable steps to incorporate the Draft Rules - relating to (1) Body sketch to

accompany medico-legal certificate, post-mortem report and inquest report –[Draft Rule

No. 1]; (2) Photographs and Video graphs of post mortem in certain cases [Draft Rule

No. 2] and (3) Scene Mahazar/ Spot Panchanama [Draft Rule No. 3] would be taken at

the earliest.

19. The court is of the opinion that the Draft Rules of Criminal Practice, 2021,

(which are annexed to the present order, and shall be read as part of it) should be hereby

finalized in terms of the above discussion. The following directions are hereby issued:

(a) All High Courts shall take expeditious steps to incorporate the said Draft

Rules, 2021 as part of the rules governing criminal trials, and ensure that the existing

rules, notifications, orders and practice directions are suitably modified, and

promulgated (wherever necessary through the Official Gazette) within 6 months from

today. If the state government’s co-operation is necessary in this regard, the approval of

the concerned department or departments, and the formal notification of the said Draft

Rules, shall be made within the said period of six months.

(b) The state governments, as well as the Union of India (in relation to investigating

agencies in its control) shall carry out consequential amendments to their police and

other manuals, within six months from today. This direction applies, specifically in

respect of Draft Rules 1-3. The appropriate forms and guidelines shall be brought into

force, and all agencies instructed accordingly, within six months from today.

20. The court hereby places its appreciation and gratitude to the contributions and

effort of the three amici Shri Siddharth Luthra, Shri R. Basanth (Senior Advocates) and

9

Shri K. Parameshwar, Advocate - they gave valuable inputs and innumerable

suggestions, considered all suggestions given by various stakeholders, reported to the

court and made extremely useful submissions. The court also places on record its

appreciation of Shri A. Karthik, Ms. Mehak Jaggi and Shri M.V. Mukunda, Advocate,

who rendered valuable assistance to the amici.

21. The suo motu proceeding is disposed of in terms of the above directions.

………………………………CJI

[S.A. BOBDE]

……...........................................J

 [L. NAGESWARA RAO]

……...........................................J

 [S. RAVINDRA BHAT]

New Delhi,

April 20, 2021.

10

DRAFT CRIMINAL RULES ON PRACTICE, 2021

 CHAPTER I. I NVESTIGATION

1. BODY SKETCH TO ACCOMPANY MEDICO LEGAL CERTIFICATE, POST MORTEM

REPORT AND INQUEST REPORT:

Every Medico Legal Certificate, Post Mortem Report shall contain a printed format

of the human body on its reverse and injuries, if any, shall be indicated on such

sketch.

Explanation: The printed format of the human body shall contain both a frontal and

rear view of the human body as provided in ANNEXURE – A

2. PHOTOGRAPHS AND VIDEO GRAPHS OF POST MORTEM IN CERTAIN CASES

i. In case of death of a person in police action [under Section 46 Criminal

Procedure Code, 1973(“Cr.PC”) or Sections 129 to 131 Cr.PC] or death

while in police custody, the magistrate or the Investigating Officer as the case

may be, shall inform the hospital or doctor in charge to arrange for photographs

or videography for conducting the post-mortem examination of the deceased.

The photographs of the deceased shall also be arranged to be taken in all cases.

ii. Such photograph and video graphs shall be taken either by arranging a police

photographer or a nominated photographer of the State Government, and where

neither of the above are available, an independent or private photographer shall

be engaged.

iii. Such photographs or video graphs shall be seized under a panchnama or

seizure memo and all steps taken to ensure proper proof of such

photographs/video graphs during Trial.

11

iv. The Investigating Officer shall ensure that such photographs and videographs,

if taken electronically, are seized under a panchnama or seizure memo and

steps are taken to preserve the original, and ensure that certificate under

Section 65B Indian Evidence Act, 1872 is obtained and taken to be proved

during trial.

v. The video or photographs shall be stored on a separate memory card,

accompanied by a duly certified certificate under Section 65B Indian Evidence

Act, 1872.

vi. Where post-mortems are recorded in electronic form, the file containing the

post-mortem proceedings, duly certified, should be placed with the memory

card as an attachment unless individual memory cards are not capable of being

produced before Court.

3. SCENE MAHAZAR/ SPOT PANCHANAMA

i. A site plan of the place of occurrence of an incident shall be appended by the

Investigating Officer to the scene mahazar or spot panchnama.

ii. The site plan shall be prepared by the Investigating Officer by hand, and shall

disclose

a. the place of occurrence,

b. the place where the body (or bodies) was / were found,

c. the place where material exhibits and/or weapons,

d. blood stains and/or body fluids had fallen,

e. the place where bullet shells, if any, were found or have caused impact,

f. the source of light, if any and

g. adjoining natural and man-made structures or features such as walls,

pits, fences, trees/bushes, if any and

h. elevation of structures and their location.

12

iii. The preparation of this sketch by the Investigating Officer shall be followed by

a scaled site plan prepared by police draftsman, if available, or such other

authorized or nominated draftsman by the State Government, who shall prepare

the scaled site plan after visiting the spot.

iv. The relevant details in the mahazar or panchnama shall be marked and

correlated in the said site plan.

4. SUPPLY OF DOCUMENTS UNDER SECTIONS 173, 207 AND 208 CR.PC

i. Every Accused shall be supplied with statements of witness recorded under

Sections 161 and 164 Cr.PC and a list of documents, material objects and

exhibits seized during investigation and relied upon by the Investigating

Officer (I.O) in accordance with Sections 207 and 208, Cr. PC.

Explanation: The list of statements, documents, material objects and exhibits

shall specify statements, documents, material objects and exhibits that are not

relied upon by the Investigating Officer.

 Chapter II: CHARGE

5. The order framing charge shall be accompanied by a formal charge in Form 32,

Schedule II, Cr.P.C. to be prepared personally by the Presiding Officer after

complete and total application of mind.

 CHAPTER III:TRIAL

6. RECORDING OF EVIDENCE: PROCEDURE

i. The depositions of witnesses shall be recorded, in typed format, if possible.

The record of evidence shall be prepared on computers, if available, in the

Court on the dictation of the Presiding Officer.

Provided that in case the language of deposition is to be recorded in a language

other than English or the language of the State, the Presiding Officer shall

13

simultaneously translate the deposition either himself or through a competent

translator into English.

ii. The deposition shall be recorded in the language of the witness and in English

when translated as provided in Clause 6 (i).

iii. The depositions shall without exception be read over by the Presiding officer in

Court. Hard copy of the testimony so recorded duly signed to be a true copy by

the Presiding Officer/court officer shall be made available free of cost against

receipt to the accused or an advocate representing the accused, to the witness

and the prosecutor on the date of recording.

iv. A translator shall be made available in each Court and Presiding Officers shall

be trained in the local languages, on the request of the Presiding Officer.

v. The Presiding Officers shall not record evidence in more than one case at the

same time.

7. RECORDING OF EVIDENCE: FORMAT OF WITNESSES

i. The deposition of each witness shall be recorded dividing it into separate

paragraphs assigning paragraph numbers.

ii. Prosecution witnesses shall be numbered as PW-1, PW-2 etc, in seriatim.

Similarly, defence witnesses shall be numbered as DW-1, DW-2, etc., in

seriatim. The Court witnesses shall be numbered as CW-1, CW-2, etc, in

seriatim.

iii. The record of depositions shall indicate the date of the chief examination, the

cross examination and re-examination.

iv. The Presiding Officers shall wherever necessary record the deposition in

question and answer format.

v. Objections by either the prosecution or the defence counsel shall be taken note

of and reflected in the evidence and decided immediately, in accordance with

14

law, or, at the discretion of the learned Judge, at the end of the deposition of

the witness in question.

vi. The name and number of the witness shall be clearly stated on any subsequent

date, if the evidence is not concluded on the date on which it begins.

8. EXHIBITING OF MATERIAL OBJECTS AND EVIDENCE

i. Prosecution exhibits shall be marked as Exhibit P-1, P-2 etc in seriatim.

Similarly, defence Exhibits shall be marked as Exhibit D-1, D-2, etc in

seriatim. The Court exhibit shall be marked as Exhibit C-1, C-2, etc in

seriatim.

ii. To easily locate the witness through whom the document was first introduced

in evidence, the exhibit number shall further show the witness number of such

witness after the Exhibit number. If an exhibit is marked without proper proof,

the same shall be indicated by showing in brackets (subject to proof).

Explanation: If Prosecution witness no. 1 (PW1) introduces a document in

evidence, that document shall be marked as Exhibit P-1/PW1. If proper proof

is not offered for that document at the time when it is marked, it shall be

marked as Exhibit P-1/PW1 (subject to proof). The Second document

introduced by PW1 will be Exhibit P-2/PW1.

iii. The Material objects shall be marked in seriatim as MO-1, MO-2 etc.

9. SUBSEQUENT REFERENCES TO ACCUSED, WITNESS, EXHIBITS AND MATERIAL

OBJECTS

i. After framing of charges, the accused shall be referred to only by their ranks

in the array of accused in the charge and not by their names or other references

except at the stage of identification by the witness.

ii. After recording the deposition of witnesses, marking of the exhibits and

material objects, while recording deposition of other witnesses, the witnesses,

15

exhibits and material objects shall be referred by their numbers and not by

names or other references.

iii. Where witness cited in the complaint or police report are not examined, they

shall be referred to by their names and the numbers allotted to them in the

complaint or police report.

10.REFERENCES TO STATEMENTS UNDER SECTION 161 AND 164 CRPC:

i. During cross examination, the relevant portion of the statements recorded

under Section 161 Cr.PC used for contradicting the respective witness shall be

extracted. If it is not possible to extract the relevant part as aforesaid, the

Presiding Officer, in his discretion, shall indicate specifically the opening and

closing words of such relevant portion, while recording the deposition, through

distinct marking.

ii. In such cases, where the relevant portion is not extracted, the portions only

shall be distinctly marked as prosecution or defence exhibit as the case may be,

so that other inadmissible portions of the evidence are not part of the record.

iii. Incases, where the relevant portion is not extracted, the admissible portion shall

be distinctly marked as prosecution or defence exhibit as the case may be.

iv. The aforesaid rule applicable to recording of the statements under Section 161

shall mutatis mutandis apply to statements recorded under Section 164 of the

Cr.PC, whenever such portions of prior statements of living persons are used

for contradiction/corroboration.

v. Omnibus marking of the entire statement under S. 161 and 164 Cr.P.C shall not

be done.

11.MARKING OF CONFESSIONAL STATEMENTS

16

The Presiding Officers shall ensure that only admissible portion of Section 8 or

Section 27 Indian Evidence Act, 1872 is marked and such portion alone is

extracted on a separate sheet and marked and given an exhibit number.

 CHAPTER IV: THE JUDGMENT

12.Every judgement shall contain the following

i. Start with a preface showing the names of parties as per FORM A to the

Rules.

ii. A tabular statement as per FORM B to the Rules.

iii. An appendix giving the list of prosecution witnesses, defence witnesses,

Court witnesses, Prosecution Exhibits, Defence Exhibits and Court

Exhibits and Material Objects as per FORM C to the Rules.

13.In compliance with Section 354 and 355 Cr.PC, in all cases, the judgments shall

contain:

i. the point or points for determination,

ii. the decision thereon, and

iii. the reasons for the decision

14.In case of conviction, the judgment shall separately indicate the offence involved

and the sentence awarded. In case there are multiple accused, each of them shall be

dealt with separately. In case of acquittal and if the accused is in confinement, a

direction shall be given to set the accused at liberty, unless such accused is in

custody in any other case.

15.In the judgment the accused, witnesses, exhibits and material objects shall be

referred to by their nomenclature or number and not only by their names or

17

otherwise. Wherever, there is a need to refer to the accused or witnesses by their

name, the number shall be indicated within brackets.

16.The judgment shall be written in paragraphs and each paragraph shall be numbered

in seriatim. The Presiding Officers, may, in their discretion, organize the judgment

into different sections.

 CHAPTER V: MISCELLANEOUS

17.BAIL

i. The application for bail in non-bailable cases must ordinarily be disposed off

within a period of 3 to 7 days from the date of first hearing. If the application is

not disposed off within such period, the Presiding Officer shall furnish reasons

thereof in the order itself. Copy of the order and the reply to the bail application

or status report (by the police or prosecution) if any, shall be furnished to the

accused and to the accused on the date of pronouncement of the order itself.

ii. The Presiding Officer may, in an appropriate case in its discretion insist on a

statement to be filed by the prosecutor in charge of the case.

18.SEPARATION OF PROSECUTORS AND INVESTIGATORS

The State Governments shall appoint advocates, other than Public Prosecutors, to

advise the Investigating Officer during investigation.

19.DIRECTIONS FOR EXPEDITIOUS TRIAL

i. In every enquiry or trial, the proceedings shall be held as expeditiously as

possible, and, in particular, when the examination of witnesses has once begun,

18

the same shall be continued from day to day until all the witnesses in

attendance have been examined, unless the court finds the adjournment of the

same beyond the following day to be necessary for reasons to be recorded.

(section 309 (1) Cr.PC.). For this purpose, at the commencement, and

immediately after framing charge, the court shall hold a scheduling hearing, to

ascertain and fix consecutive dates for recording of evidence, regard being had

to whether the witnesses are material, or eyewitnesses, or formal witnesses or

are experts. The court then shall draw up a schedule indicating the consecutive

dates, when witnesses would be examined; it is open to schedule recording of a

set of witness’ depositions on one date, and on the next date, other sets, and so

on. The court shall also, before commencement of trial, ascertain if the parties

wish to carry out admission of any document under Section 294, and permit

them to do so, after which such consecutive dates for trial shall be fixed.

ii. After the commencement of the trial, if the court finds it necessary or advisable

to postpone the commencement of, or adjourn, any inquiry or trial, it may, from

time to time, for reasons to be recorded postpone or adjourn the same on such

terms as it thinks fit, for such time as it considers reasonable. If witnesses are

in attendance no adjournment or postponement shall be granted, without

examining them, except for special reasons to be recorded, in writing. (Section

309 (2) Cr.PC.).

iii. Sessions cases may be given precedence over all other work and no other work

should be taken up on sessions days until the sessions work for the day is

completed. A Sessions case once posted should not be postponed unless that is

unavoidable, and once the trial has begun, it should proceed continuously from

day today till it is completed. If for any reason, a case has to be adjourned or

postponed, intimation should be given forthwith to both sides and immediate

19

steps be taken to stop the witnesses and secure their presence on the adjourned

date.

 FORM A

IN THE COURT OF ……………………

Present: …………………. Sessions Judge

[Date of the Judgement]

[Case No………/2019]

(Details of FIR/Crime and Police Station)

Complainant STATE OF…..

OR

NAME OF THE COMPLAINANT

REPRESENTED BY NAME OF THE ADVOCATE

ACCUSED 1. NAME WITH ALL PARTICULARS (A1)

2. NAME WITH ALL PARTICULARS (A2)

REPRESENTED BY NAME OF THE ADVOCATES

 FORM B

20

Date of Offence

Date of FIR

Date of Chargesheet

Date of Framing of Charges

Date of commencement of

evidence

Date on which judgment is

reserved

Date of the Judgment

Date of the Sentencing Order, if

any

Accused Details:

Rank of

the

Accuse

d

Name

of

Accuse

d

Date

of

Arrest

Date of

Release

on Bail

Offences

charged

with

Whether

Acquitted

or

convicted

Sentence

Imposed

Period of

Detention

Undergone

during

Trial for

purpose of

section

428, Cr.PC

FORM C

LIST OF PROSECUTION/DEFENCE/COURT WITNESSES

A. Prosecution

RANK NAME NATURE OF EVIDENCE

(EYE WITNESS, POLICE WITNESS, EXPERT

WITNESS, MEDICAL WITNESS, PANCH

WITNESS, OTHER WITNESS)

PW1

PW2

B. Defence Witnesses, if any:

RANK NAME NATURE OF EVIDENCE

(EYE WITNESS, POLICE WITNESS, EXPERT

WITNESS, MEDICAL WITNESS, PANCH

21

WITNESS, OTHER WITNESS)

DW1

DW2

C. Court Witnesses, if any:

RANK NAME NATURE OF EVIDENCE

(EYE WITNESS, POLICE WITNESS, EXPERT

WITNESS, MEDICAL WITNESS, PANCH

WITNESS, OTHER WITNESS)

CW1

CW2

LIST OF PROSECUTION/DEFENCE/COURT EXHIBITS

A. Prosecution:

Sr.

No

Exhibit Number Description

1 Exhibit P-1/PW1

2 Exhibit P-2/PW2

B. Defence:

Sr.

No

Exhibit Number Description

1 Exhibit D-1/DW1

2 Exhibit D-2/DW2

C. Court Exhibits

Sr.

No

Exhibit Number Description

1 Exhibit C-1/CW1

22

2 Exhibit C-2/CW2

D. Material Objects:

Sr.

No

Material Object

Number

Description

1 MO1

2 MO2

23

When the orders passed by the NCLT admitting the application, under Section 7, and also the ordering of moratorium under Section 14 of the IBC and the orders which have been passed by the tribunal otherwise, the impugned order of the High Court resulting in the Respondent No. 1 being allowed to operate the account without making good the amount of Rs 32.50 lakhs to be placed in the account of the Corporate Debtor cannot be sustained.

When the orders passed by the NCLT admitting the application, under Section 7, and also the ordering of moratorium under Section 14 of the IBC and the orders which have been passed by the tribunal otherwise, the impugned order of the High Court  resulting in the Respondent No. 1 being allowed to operate the account without making good the amount of Rs 32.50 lakhs to be placed in the account of the Corporate Debtor cannot be sustained.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.447 OF 2021

(Arising out of SLP (CRL.) No. 1549 of 2021)

SANDEEP KHAITAN, RESOLUTION PROFESSIONAL

FOR NATIONAL PLYWOOD INDUSTRIES LTD. … APPELLANT(S)

VERSUS

JSVM PLYWOOD INDUSTRIES LTD. & Anr. … RESPONDENT(S)

J U D G M E N T

K.M. JOSEPH, J.

Leave granted.

1. The appeal is directed against order dated

04.02.2021 passed by the Hon’ble High Court of

Guwahati. In the impugned order, the High Court

has allowed an interlocutory application filed by

the Respondent No. 1 to allow it to operate its

bank account maintained with the ICICI Bank 

2

Bhubaneswar and to unfreeze the bank account of

its creditors over which the lien has been created

and the accounts frozen pursuant to the lodging of

an FIR by the appellant before us. It was made

subject to conditions.

2. An application under Section 7 of the Insolvency

and Bankruptcy Code, 2016, hereinafter referred to

as the IBC was admitted on 26.08.2019 against one

National Plywood Industries Limited (NPIL). The

Appellant was appointed as the Interim Resolution

Professional. A moratorium also came to be passed

by the very same order within the meaning of

Section 14 of the IBC. The Appellant came to be

appointed as the Resolution Professional by an

order dated 08.11.2019. In the meantime, the

Respondent No.1 claiming to be an operational

creditor lay the claim for the amounts due to it

from the Corporate Debtor before the Appellant vide

communication dated 22.11.2019. It would appear

that the former Managing Director of the Corporate

Debtor challenged the order of the NCLT, Guwahati, 

3

admitting the application under Section 7. The

NCLAT by order dated 24.11.2019 dismissed the

appeal interalia holding that the application

under Section 7 was not barred by limitation. Civil

Appeal No. 9142 of 2019 filed by the former

Managing Director of the Corporate Debtor came to

be however allowed by this Court by an order dated

20.01.2020. The NCLT was directed to consider the

matter in accordance with law. It would appear that

on 28.01.2020 interlocutory application 7 of 2020

filed by the former Managing Director of the

Corporate Debtor seeking an injunction restraining

the Respondents therein from interfering in the

operation of the Corporate Debtor and to disperse

the cost of the CIRP was disposed of interalia as

follows: -

i. “Today the Respondents submitted across the

Bar that except ratifying the expenses of the

IRP, no major decisions have been taken by the

COC in the yesterday’s COC meeting. Both the

respondents informed that they are conscious 

4

about the order passes by the Hon’ble Supreme

Court and the legal consequences thereof.

ii. In view of the above submissions of the

respondents, this Tribunal expects that the

respondents would maintain status-quo in

respect of the IRP proceedings. As the main

company petition was remanded back to the

Hon’ble NCLAT for fresh disposal in accordance

with law, this Tribunal is of the considered

opinion that the petitioner has to approach

the Hon’ble NCLAT for any further directions

in the above matter and accordingly above

application stands disposed of with the above

observations. Even otherwise, the order of

admission of the company petition has not

attained finality and, therefore, no interim

orders as prayed for needs to be passed today.

iii. In the result, IA No. 07 of 2020 is disposed

of with the above observations.”

Thereafter there is order dated 20.03.2020

passed which we will advert to.

5

3. It is the case of the Appellant that the former

Managing Director of the Corporate Debtor in

conspiracy with the Respondent No.1 engaged in an

illegal transaction to the tune of Rs. 32.50 lakhs

without authority from the Appellant and in

violation of Section 14 of the IBC. It is his

complaint that initially, the Managing Director

made a transaction of Rs. 500. Thereafter, he

proceeded by virtue of 4 consecutive transactions

to transfer a sum of Rs. 32.50 lakhs to the

Respondent No. 1. It is also complaint of the

Appellant that the former Managing Director

proceeded to transfer another sum of Rs. 3.29 lakhs

from another account and the amount was transferred

to his close associate.

4. On 23.04.2020, the Appellant filed a cyber

complaint. This was followed on the same date by

filing an application under Section 19 read with

Section 23 (2) of the IBC alleging non corporation

by the previous management of the Corporate Debtor.

On 27.04.2020, the Appellant got lodged an FIR. On 

6

04.05.2020 the ICICI Bank created a lien upon the

bank account of the Respondent No. 1 based on the

allegedly illegal transaction. The next

development to be noticed is the order dated

20.05.2020 passed by the NCLT, Guwahati. The order

is passed in I.A. No. 37 of 2020. The relief sought

therein was for direction to the Directors of the

Corporate Debtor to hand over the management of

the company. The order reflects the controversy

relating to the payment of Rs. 32.50 lakhs

violating the moratorium. Tribunal finds that the

directors of the Corporate Debtor were not giving

maximum assistance. On the basis of its findings

the tribunal issued directions to the suspended

Board of the Corporate Debtor to cooperate with

the Appellant. The Auditors were to complete the

audit expeditiously interalia. More importantly

the Directors were directed to refund the amount

withdrawn less the amount if any paid to the

alleged supplier as the cost of raw materials. The

interlocutory application was posted before the 

7

regular bench for hearing after lifting the

lockdown.

5. A perusal of the order reveals that the Directors

of the company sought to defend the withdrawal of

Rs.32.50 lakhs as one intended to pay for the raw

materials. It is further noticed that the Tribunal

noticed that there was no proof for the same. More

importantly it was found that even if done to

discharge debt due to supplies during the CIRP,

without permission and knowledge of the Resolution

Professional, it was in violation of Section 14 of

the Code.

6. The Appellant moved an application for review of

the order dated 20.05.2020. The Tribunal in its

order dated 05.06.2020 noticed the limitations

flowing from Rules 154 and 155 of the NCLT, Rules,

2016 in the matter of review. It is observed that

for the reasons highlighted in the 20.05.2020 the

former Directors of the Corporate Debtor are found

prima facie liable to refund the amount 

8

unauthorisedly withdrawn from the account of the

Corporate Debtor. It is also noticed that the

Directors of the suspended board were not made

respondents. The application for review came to be

dismissed.

7. The genesis of the impugned order is the FIR

lodged against the Appellant and arose from the

payment effected into the account of Respondent

No.1 in a sum of Rs. 32.50 lakhs. The said FIR

came to be challenged in a petition under Section

482 of the Cr.P.C. by the Respondent No.1 by filing

Criminal Petition No. 454 of 2020. In the same the

Appellant also filed I.A. No. 453 of 2020.

8. On 19.01.2021 the NCLT, Guwahati passed an order

in I.A No. 37 of 2020. By the said order the

Appellant was directed to discharge his duties as

per the provisions of the IBC. Thereafter, it also

passed the following directions: -

i. “The Learned Counsel for the Respondents has

confirmed that the Suspended Management has

been co-operating and providing assistance to 

9

RP to complete the CIRP in time. The Corporate

Debtor is directed to submit its reply

Affidavit to the allegations made relating to

the transactions of Rs. 35.795 lakhs serving

a copy upon the RP.

ii. Any amount of the Corporate Debtor lying in

any Bank is to be transferred to the account

being operated by the RP. Banks having account

of the Corporate Debtor are directed to lift

the lien, if any, on any amount of the

Corporate Debtor and allow the operation of

the account by the RP only.

iii. The RP is directed to utilize the funds of the

Corporate Debtor under CIRP judiciously

keeping the Unit in its full operation.”

9. Thereafter, in the petition filed by the

Respondent No.1 under Section 482, the High Court

admitted the petition. The case was directed to be

listed for regular hearing in usual course.

(According to the Appellant the High Court had

directed investigation to be continued. This is 

10

not seen reflected in the order which is produced).

In the I.A No. 453 of 2020 filed in the Section

482 resulting in the impugned order, the prayers

sought has already been noted. It is to allow the

Respondent No.1 and its creditors to operate their

bank account over which lien has been created and

those accounts which have been frozen based on the

FIR dated 27.04.2020.

THE IMPUGNED ORDER

10. After noticing the contentions of the parties,

the Learned Single Judge in the impugned order

proceeds to hold as follows:-

i. “From the material on record, it is apparent

that there was business relation between the

petitioner company and the NPIL, which is

evident from the various documents annexed to

the petition. Only question raised in this FIR

is that the money was transferred by the

suspended CMD without any authority, inasmuch

as, the entire state of affairs of NPIL was 

11

vested with the Respondent No. 2, who has been

appointed as resolution professional. Only

incriminating allegation against the

petitioner is that the suspended CMD has

personal interest in the petitioner company

being an associate company, which is however,

a disputed fact required to be investigated by

police.

ii. Be that as it may, having considered the entire

gamut of the matter and the nature of

accusation brought against the present

petitioner, I am of the view that freezing of

all the bank account as indicated above would

certainly cause unnecessary hardship, which

may not be necessary for the investigation of

the present FIR in view of the nature of the

accusation made therein as well as in view of

the offer made by the petitioner to furnish a

bond. Therefore, in my consider view, the

petitioner is entitled to the interim relief

as sought for. Accordingly, it is provided

that the lien created upon the bank account 

12

no. 149905001306 maintained with the ICICI

Bank Limited, Chandrasekarpur Branch,

Bhubaneswar be lifted, the petitioner and its

creditors shall be allowed to operate the bank

account over which lien has been created and

the accounts have been frozen pursuant to the

instruction of the Respondent No. 2 in

connection with Margherita P.S. Case No.

0112/2020, until further order of the Court.

iii. It is however, made clear that the interim

relief granted to the petitioner as above with

regard to unfreezing the bank account and

lifting of lien shall be subject to the

condition that the petitioner shall withdraw

the WP (C) No. 118/2020 filed before the

Itanagar Permanent Bench of this Court and

furnishing an indemnity bond undertaking to

refund the amount of Rs. 32.50 Lakhs if

required, subject to final outcome of the

criminal case.”

13

11. We heard the Learned Counsel for the Appellant

Shri Anand Varma and the Learned Counsel for the

Respondent No. 1, Shri Harish Pandey. The State is

represented by Shri Shuvodeep Roy.

SUBMISSIONS

12. The Learned Counsel for the Appellant

contended that the impugned order proceeds on an

erroneous basis namely that the allegations about

the co-accused (former Managing Director of the

Corporate Debtor) having an interest in the

Respondent No.1 Company was a disputed fact which

had to be investigated. It is the case of the

Appellant that there is a report of the auditing

firm. Also, the said finding of the High Court is

contrary to the documents of the Respondent No. 1

itself. It is also urged that the High Court itself

has permitted the investigation to go on in the

petition under section 482. Secondly, he pointed

out that the impugned order was contrary to Section

14 of the IBC. He drew support from the judgment 

14

of this Court in P Mohanraj vs. M/S. Shah Brothers

Ispat Pvt. Ltd. in Civil Appeal No. 10355 of 2018.

According to him, the whole purpose of the

moratorium would be defeated if members of the

previous management of the Corporate Debtor are

left free to transfer the funds of the Corporate

Debtor. The Respondent No. 1 was a related party

of the Corporate Debtor. He reiterates that with

the appointment of Appellant as the Resolution

Professional under Section 25 (2)a of the IBC he

is to take custody and control of all the assets

of the Corporate Debtor. Finally, he also

emphasized the nature of the jurisdiction under

Section 482 of the Cr.P.C. The High Court has

overlooked the limits of its power in passing the

impugned order, he complains. He points out that

the order admitting the application under section

(7) has not been stricken by the remand by this

Court of the appeal against the order admitting

the application.

15

13. Per contra Shri Harish Pandey, Learned

Counsel, contended that the order may not be

interfered by this Court. The Respondent No.1 was

a related party and it was always known to be such

related party. He referred to the fact that the

Respondent No.1 was supplier of raw material to

the Corporate Debtor. He pointed out goods worth

more than Rs.2 crores have been supplied by it to

the Corporate Debtor. Payments were being made. In

fact, a sum of more than Rs.39 lakhs is further

due from the Corporate Debtor to the Respondent

No. 1. It is emphasized as a MSME it would cause

grave prejudice to it if the impugned order is set

aside.

14. It is the case of the Respondent No. 1 further

that the business relationship between the

Respondent No. 1 and Corporate Debtor has existed

for more than 15 years. The Corporate Debtor has

been declared a sick industry on 18.04.2006. It

was nursed back by the Respondent No. 1. Our

attention is drawn to the minutes of the first 

16

meeting of the Committee of Creditors dated

23.09.2019. The minutes reveal that committee of

creditors observes that a substantial part of the

raw materials is purchased from Respondent No.1

and that the relatives of the Corporate Debtor

directors or shareholders hold more than 51 percent

shareholding of the first respondent. It is further

noted that the processes to assess the veracity

and reasonableness of the transaction in such

situation were let known and the purchases/sales

must be benchmarked against arm’s length

transactions and open market transactions. (We may

also notice that the meeting resolved that all the

banks were to act on the instructions of the

appellant interalia.) It is the case of the

Respondent No. 1 that right from the beginning, it

was known that the Respondent No. 1 was a related

party. It is the further case of the Respondent

No. 1 that its claim for over 6 crores of rupees

was vetted, verified and admitted by the Appellant.

After the commencement of CIRP Respondent No. 1

had made regular substantial supplies to the 

17

Corporate Debtor for which the payment were being

made (they relate to the period from 26.08.2019 to

31.03.2020). This is shown as amounting to Rs.

2,70,84,982. The Respondent No. 1 lays store by

the order of the NCLT, Guwahati dated 28.01.2020

which we have already referred to. E-mails

addressed to the Appellant to clarify did not evoke

any response. In March 2020, orders were placed by

the Corporate Debtor for approximately Rs. 30

lakhs. The lockdown intervened. On 18.04.2020 it

is not disputed that the Corporate Debtor made a

payment of Rs 32.50 lakhs through online net

banking transfer against material supplied during

the period that the corporate debtor was under

CIRP. The Learned Counsel for the Respondent No.1

would point out that the order of the NCLT dated

20.05.2020 passed by the NCLT directed the

directors of the Corporate Debtor to refund the

amount withdrawn less any amount supplied to the

alleged supplier. It is therefore, pointed out

creating a lien on the accounts of the Respondent

no. 1 was not justified. The Learned Counsel also 

18

drew our attention to the order dated 24.03.2021

passed by the NCLT Guwahati Bench. This is in an

effort at showing the manner in which the appellant

has been functioning. The Tribunal in the said

order refers to the Impugned Order and the Interim

order passed by this Court in this matter. The

Tribunal noted that the production has been

suspended and layoff notice is also issued in

regard to the Corporate Debtor. The objectives of

the IBC are being defeated on the basis of the

claims and the FIR interalia. The Appellant was

directed to file the copy of the FIR in this case

among other documents. The Learned counsel for the

Respondent no. 1 would submit that the having

regard to the orders passed by the tribunal the

Impugned Order passed by the High Court may not be

interfered with. Having regard to the dismissal of

the review petition filed against the 20.05.2020

there is no merit in the present appeal.

15. The Learned Counsel for the Appellant would

point out that the Appellant is prevented from 

19

disbursing the salary of the workers. Nearly four

months’ salary would be disbursed with the amount

which was paid by the former management without

any authority as noticed. It is the case of

Appellant that the transactions between the

Respondent No.1 and the Corporate Debtor was not

authorised by the Appellant during the period from

21.02.2020 to 27.04.2020.

FINDINGS

16. The contours of the jurisdiction under 482 of

the Cr.P.C. are far too well settled to require

articulation or reiteration. Undoubtedly, in this

case by 26.08.2019 an application filed under

section 7 of the IBC was admitted, the appellant

appointed as the interim resolution professional

and what is more a moratorium declared. With the

declaration of the moratorium the prohibitions as

enacted in section 14 came into force. It is clear

that the assets of the company would include the

amounts lying to the credit in the bank accounts. 

20

There cannot be any dispute that well after the

order under section 14 was passed, a sum of Rs.

32.50 lakhs has been remitted into the account of

Respondent No.1 company. No doubt it is the

definite case of the Respondent No.1 that it has

had business relations with the Corporate Debtor

since more than 15 years and that the amount

remitted in its account represented the price of

the materials supplied to the Corporate Debtor.

Apart from this amount a sum of rupees more than

Rs.39 lakhs is still due. It is to be noticed that

though an appeal was filed against the order

admitting the petition under Section 7 the same

was dismissed by the NCLAT. The appellate order

was undoubtedly set aside by this court and the

appeal remanded to the NCLT for its consideration.

We would think that setting aside the appellate

order of the NCLAT by this court and remanding the

appeal would not have the effect of setting aside

the order admitting the application. Initially, as

was noticed by us an order was passed on

28.02.2020. The ambiguity created by the said order 

21

was removed by the subsequent order of the Tribunal

dated 20.03.2020. In other words, by the order

dated 20.03.2020 the NCLT, Guwahati ordered that

the appellant was at liberty to act as per law and

the words used in the earlier order dated

28.02.2020 relied upon by the Respondent No.1 were

found to be a mere casual observation which did

not culminate into any direction. We need not say

anything further particularly in view of the fact

that there is an FIR and which is pending

consideration in the High Court also. It is

significant only for us to notice that the

Appellant is essentially aggrieved by the

transactions representing a sum of Rs. 32.50 lakhs

all of which took place after order dated

20.03.2020.

17. It may be true that in the interim order passed

by the NCLT Guwahati, the Tribunal had directed

the Directors to refund the amount of the Corporate

Debtor less any amount paid for supplies. It is

also true that the review petition filed by the 

22

Appellant is dismissed, essentially based on the

limitations on the power of review.

18. The provisions of the IBC contemplate

resolution of the insolvency if possible, in the

first instance and should it not be possible, the

winding up of the Corporate Debtor. The role of

the insolvency professional is neatly carved out.

From the date of admission of application and the

appointment of Interim Resolution Professional,

the management of the affairs of the Corporate

Debtor is to vest in the Interim Resolution

Professional. With such appointment, the powers of

the Board of Directors or the partners of the

Corporate Debtor as the case may be are to stand

suspended. Section 17 further declares that the

powers of the Board of Directors or partners are

to be exercised by the Interim Resolution

Professional. The financial institutions are to

act on the instructions of the Interim Resolution

Professional. Section 14 is emphatic, subject to

the provisions of sub section (2) and (3). The 

23

impact of the moratorium includes prohibition of

transferring, encumbering, alienating or disposing

of by the Corporate Debtor of any of its assets.

19. Sub section 2 reads as follows:-

“The supply of essential goods or services to the

corporate debtor as may be specified shall not be

terminated or suspended or interrupted during

moratorium period.”

20. Essential goods and services referred to in

Section 14(2) has been defined by Regulations.

Regulation 32 of the INSOLVENCY AND BANKRUPTCY

BOARD OF INDIA (INSOLVENCY RESOLUTION PROCESS FOR

CORPORATE PERSONS) REGULATIONS, 2016, reads as

follows:-

"Essential Supplies.

The essential goods and services referred to in

section 14(2) shall meani. Electricity;

24

ii. water;

iii. telecommunication services; and

iv. information technology services,

to the extent these are not a direct input to the

output produced or supplied by the corporate

debtor.

Illustration- Water supplied to a corporate debtor

will be essential supplies for drinking and

sanitation purposes, and not for generation of

hydro-electricity.”

21. Also, undoubtedly Section (2A) of Section 14

of the THE INSOLVENCY AND BANKRUPTCY CODE, 2016

provides as follows:

“Where the interim resolution professional or

resolution professional, as the case may be,

considers the supply of goods or services critical

to protect and preserve the value of the corporate

debtor and manage the operations of such corporate

debtor as a going concern, then the supply of such

goods or services shall not be terminated,

suspended or interrupted during the period of 

25

moratorium, except where such corporate debtor has

not paid dues arising from such supply during the

moratorium period or in such circumstances as may

be specified.”

22. This provision was inserted with effect from

28.12.2019. No doubt under this provision goods or

services not covered by Section 14(2) are also

covered. The call however is to be taken by the

IRP/RP. Raw material supply could fall within

the provision. The IRP/RP must take a decision

guided purely by the object of the IBC and the

provisions and the factual matrix.

23. With the appointment of Committee of

Creditors, a Resolution Professional is to be

appointed. The Resolution Professional is

thereafter to conduct the resolution process and

manage the operations. Section 23 (2) makes it

clear that his power is the same as the powers of

the Interim Resolution Professional. Undoubtedly,

the Resolution Professional is bound to seek prior 

26

approval of the Committee of Creditors in maters

covered by Section 28.

24. We have to also in this context bear in mind

that the High Court appears to have, in passing

the impugned order, which is an interim order for

that matter, overlooked the salutary limits on its

power under Section 482. The power under Section

482 may not be available to the Court to

countenance the breach of a statuary provision.

The words ‘to secure the ends of justice’ in

Section 482 cannot mean to overlook the undermining

of a statutory dictate, which in this case is the

provisions of Section 14, and Section 17 of the

IBC.

25. It would appear to us that having regard to

the orders passed by the NCLT admitting the

application, under Section 7, and also the ordering

of moratorium under Section 14 of the IBC and the

orders which have been passed by the tribunal

otherwise, the impugned order of the High Court 

27

resulting in the Respondent No. 1 being allowed to

operate the account without making good the amount

of Rs 32.50 lakhs to be placed in the account of

the Corporate Debtor cannot be sustained. The

Learned Counsel for the Appellant has also no

objection in the Respondent No. 1 being allowed to

operate its account subject to it remitting an

amount of Rs. 32.50 lakhs into the account of the

Corporate Debtor. In such circumstances, Appeal is

allowed. The Impugned order is modified as follows:

i. The Respondent No.1 is allowed to operate its

account subject to it to first remitting into

the account of the Corporate Debtor, the

amount of Rs 32.50 lakhs which stood paid to

it by the management of the Corporate Debtor.

The assets of the Corporate Debtor shall be

managed strictly in terms of the provisions of

the IBC. The Appellant as RP will bear in mind

the provision of Section 14 (2A) and the object

of IBC. We however make it clear that our order

shall not be taken as our pronouncement on the 

28

issues arising from the FIR including the

petition pending under Section 482 of the

Cr.P.C.

ii. We also make it clear that the judgment will

not stand in the way of the Respondent No.1

pursuing its claim with regard to its

entitlement to a sum of Rs.32.50 lakhs and any

other sum from the Corporate Debtor or any

other person in the appropriate forum and in

accordance with law. There will be no order as

to costs.

 ......................J.

 (UDAY UMESH LALIT)

......................J.

 (K.M. JOSEPH)

New Delhi,

April 22, 2021.