LAW FOR ALL

Thursday, October 21, 2021

granting the benefit of pension - when the appellant made claim for the pensionary benefits by taking into consideration and reckoning the service of 10 years rendered by the appellant between 05.02.1974 to 31.05.1984 in the Telecom Department which was service under the Central Government. The Accountant General, by the communication dated 26.07.2006 however informed that since the break between the Central Service and State Service is nearly three years, unless the same is condoned by the State Government, the Central Service cannot be reckoned as qualifying service for pension.=the KAT had taken note of the entire sequence and had rightly noted that the issue had not been settled and not reached finality in the case of the appellant since his review petition dated 17.09.2014 against the order dated 25.07.2014 was still pending when the Government Order dated 24.09.2014 was issued. The said 12 Government Order in para 2 has taken note of the several requests received to reckon the prior qualifying service. Further, the main aspect of reckoning the service rendered in Central Government for pensionary benefit after joining State Government service was given effect through the Government Order dated 12.11.2002 and 06.12.2003 i.e., when the appellant was still in State Government service and had not retired. The issue of condoning the break i.e., the sandwich period was claimed immediately on retirement and it was still being agitated. The review was rejected on 21.05.2015 only after the Government Order dated 24.09.2014 was issued granting the benefit of condoning the break.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6292 OF 2021

(Arising out of SLP(C) No. 29856/2019)

Valsan P. .…Appellant(s)

Versus

The State of Kerala and Ors. …. Respondent(s)

J U D G M E N T

A.S. Bopanna,J.

1. The appellant is before this Court in this appeal,

assailing the order dated 21.05.2019 passed by the learned

Division Bench of the High Court of Kerala at Ernakulam in OP

(KAT) No.468 of 2017 titled, The State of Kerala and Others.

Vs. Valsan P. By the said order the learned Division Bench has

allowed the OP and set aside the order dated 14.11.2016

passed by the Kerala Administrative Tribunal,

Thiruvananthapuram (for short ‘KAT’) in O.A. No.975 of 2015.

The KAT had through the said order allowed the application

granting the benefit of pension by condoning the period of

break in service, as being permissible in the circumstance.

2. The undisputed facts are that the appellant worked as a

Technician in the Telecom Department during the period

05.02.1974 to 31.05.1984. The appellant thereafter joined as

an Engineer in Steel Industries Limited, Kerala (for short ‘SILK’)

on 04.06.1984. The said SILK is a Public Sector Undertaking

(for short ‘PSU’) owned by Government of Kerala. He worked

there till 31.05.1987. Subsequent thereto, through the Public

Service Commission, the appellant joined the Technical

Education Department on 31.05.1987. He served for about 19

years and on attaining the age of superannuation, retired from

service on 30.06.2006.

3. The contested issue arose at this point when the

appellant made claim for the pensionary benefits by taking into

consideration and reckoning the service of 10 years rendered by

the appellant between 05.02.1974 to 31.05.1984 in the Telecom

Department which was service under the Central Government.

The Accountant General, by the communication dated

26.07.2006 however informed that since the break between the

Central Service and State Service is nearly three years, unless

the same is condoned by the State Government, the Central

Service cannot be reckoned as qualifying service for pension.

The appellant therefore made a representation dated

23.09.2006 to the Government requesting to condone the said

break in service. Though the said request was rejected by the

communication dated 12.02.2007, it was by an unreasoned

order. On being assailed, the same was set aside and the

matter was sent back for reconsideration. On such

reconsideration, the request made by the appellant was

declined stating that there are no rules for condoning the break

in service. It stated that as per rules the break between the two

appointments shall not exceed the joining time admissible

under service rules. The rule referred to was Rule 29 (b) Part III

of Kerala Service Rules (for short ‘KSR’).

4. The appellant however filed a review petition dated

17.09.2014 seeking the State Government to review the

decision since ‘SILK’, to which the appellant had joined in the

sandwiched period was a fully Stateowned PSU. Hence, the

appellant requested the exercise of power under Rule 39 of Part

II of Kerala State and Subordinate Service Rules (for short ‘KS

& SSR’). The review petition filed by the appellant was rejected

through the intimation dated 21.05.2015 despite the

Government order dated 24.09.2014. The appellant who was

aggrieved by the rejection of his request approached the KAT in

O.A. No.975 of 2015.

5. The KAT on making a detailed analysis of not just the

rules but also the series of Government orders which are

relevant, held the appellant entitled to the benefit and

accordingly allowed the application. The KAT noted that the

requirement was that the period of service in ‘SILK’ is to be

condoned as a disconnect period to provide continuity of service

in the two employments. Thus, giving the benefit of the

Government order dated 24.09.2014 the entitlement as claimed

was upheld. The High Court on the other hand has declined the

relief by proceeding on the basis as if the appellant was seeking

to reckon the service rendered by him in ‘SILK’ also as

pensionable service. Insofar as service rendered in the Telecom

Department it was held that the appellant should approach the

Central Government seeking to reckon the same. The High

Court, therefore without addressing the real issue has set aside

the order passed by the KAT. The appellant thus claiming to be

aggrieved has filed this appeal.

6. We have heard Mr. P.V. Surendranath, learned senior

counsel for the appellant, Mr. C.K. Sasi, learned counsel for the

respondents and perused the appeal papers.

7. To put the matter in perspective, it is to be noted at the

outset that the appellant had worked in the Telecom

Department from 05.02.1974 to 31.05.1984 which is

pensionable service in usual course if the other requirements

were satisfied. The appellant had thereafter worked in the

Technical Education Department under the State Government

from 31.05.1987, till his retirement on attaining the age of

superannuation on 30.06.2006. The said service is also

pensionable service. During the interregnum, between

04.06.1984 to 30.05.1987 the appellant worked in ‘SILK’ which

is a State Government Public Sector Undertaking and the

service rendered therein is admittedly not pensionable service.

The said period of service therefore acts as a disconnect

between the two different pensionable service rendered by the

appellant and the same needs to be condoned to provide a

single block of pensionable service.

8. In that background, it is also to be kept in perspective

that the case of the appellant is not that the nonpensionable

service rendered in ‘SILK’ is also to be reckoned and the entire

service from 05.02.1974 to 30.06.2006 is to be admitted for

computing the pensionary benefits as assumed by the High

Court. On the other hand, what the appellant seeks is to

exclude the service rendered in ‘SILK’ and condone that period

between 04.06.1984 to 31.05.1987 from being treated as a

disjoint or break between the two pensionable services, though,

one is under the Central Government and the other under the

State Government. The sum and substance of the claim put

forth by the appellant is to reckon the service between

05.02.1974 to 31.05.1984, plus, the service between

31.05.1987 to 30.06.2006 as the total number of years as the

pensionable service, clearly excluding the number of years

between 04.06.1984 to 30.05.1987.

9. With reference to the consideration made by the State

Government in rejecting the claim of the appellant, the learned

counsel for the respondents has referred to Rule 29, Part III

KSR to contend that the Rule is categorical that the benefit of

past service will stand forfeited if the break between the two

appointments exceeds the joining time admissible under the

service Rules. The said Rule reads as hereunder:

“Rule 29 Part III KSR

29. Resignation and Dismissal. (a)

Resignation of the Public Service or dismissal

or removal from it, entails forfeiture of past

service.

(b) Resignation of an appointment to take up

another appointment the service in which

counts is not resignation from public service.

Note: The break between the two

appointments should not exceed the joining

time admissible under the service rules plus

the public holidays".

10. The above noted Rule if taken into consideration as a

standalone provision, it would settle the issue against the

appellant since the break between the two appointments is

much more than the joining period and the break itself is due

to nonpensionable employment. However, what is required to

be examined is the availability of provision to condone such

break. The learned counsel for the appellant has therefore

referred to Rule 39 of Part II KS and SSR to indicate the power

available to the State Government to take just and equitable

decisions relating to the service of any person and the Rule

should be dealt in the manner in which it is favourable to the

person in service. The said Rule reads as hereunder:

“Rule 39 of Part II KS & SSR

39. Notwithstanding, anything contained in

these rules or in the Special Rules or in any

other Rules or Government Orders the

Government shall have power to deal with the

case of any person or persons serving in a civil

capacity under the Government of Kerala or

any candidate for appointment to a service in

such manner as may appear to the

Government to be just and equitable:

Provided that where such rules or orders

are applicable to the case of any person or

persons, the case shall not be dealt with in any

manner less favourable to him or them than

that provided by those rules or orders.

This amendment shall be deemed to have

come into force with effect from 17th December

1958.”

11. In that backdrop, having noted that the appellant’s first

spell of pensionable service was under the Central Government

and the second spell was under the State Government, it would

be apposite to take note of the Government Order dated

12.11.2002 referred by the learned counsel for appellant. The

relevant portion of the Government Order dated 12.11.2002

reads as hereunder:

“Government have examined the matter in

detail and are pleased to order that the

employees of the State Government

Departments who left the former service in

Central Government/ Central Public Sector

Undertakings on their own volition for taking

up appointment is State government

Departments will be allowed to reckon their

prior service for all pensionary benefits along

with the service in the State Government

Department if the former employer remits the

share of proportionate prorate pensionary

liability on a service share basis.

These Orders will take effect, including

monetary effect, only from the date of this

order and individual cases otherwise settled

will not be reopened.”

12. Though the benefit of reckoning the earlier pensionable

service between Central Government and State Government

was provided, it was subject to remitting the proportionate pro

rata pensionary liability on service share basis between the two

employers. However, by a subsequent Government Order dated

06.12.2003, which has reference to the earlier Government

Order dated 12.11.2002, the State Government has done away

with the proportionate pro rata sharing between the two

employers for payment of pensionary benefits. The State

Government has notified to bear the pensionary benefits. The

relevant portion of the said Government Order dated

06.12.2003 reads as hereunder:

“Government have examined the matter in

detail and in modification of the orders issued

in the G.O. 3rd cited are pleased to order that

in the case of prior service rendered by Central

Government employees in State Government

and vice versa, the liability of Pension

including gratuity, will be become in full by the

central Government/State Government to

which the Government servant permanently

belongs at the time of retirement and no

recovery of proportionate pension will be mode

from Central Government/State Government

under whom he had served. But in the case of

employees who left the former service in the

Central Public Sector Undertakings the orders

issued in G.O. dt 12.11.02 will stand.”

13. In view of the said position, the observation of the High

Court that the appellant is free to move the Central

Government if he has a case that his service in the Telecom

Department is liable to be reckoned is not justified. If the break

in service is condoned as sought by the appellant, then the

entire relief would be available at the hands of the State

Government. Therefore, the solitary moot question for

consideration in the instant case is, as to whether the break in

service interrupting the service rendered in Telecom

Department and the Technical Education Department is

condonable.

14. On this aspect, the learned counsel for the appellant has

relied on the Government Order dated 24.09.2014 whereunder

the condonation of the nonqualifying sandwiched period was

provided for, to reckon the qualifying service. The Government

Order was made with reference to Rule 29 (a) Part III KSR. The

Government Order dated 24.09.2014 reads as hereunder:

“As per Rule 29(a) Part III Kerala Service Rules,

resignation of the Public Service or dismissal

or removal from it, entails forfeiture of past

service. As per Rule 29(b) of ibid, resignation of

an appointment to take up another

appointment the service in which counts is not

resignation from public service and the break

between two appointments should not exceed

the joining time admissible under the service

rules plus public holidays.

2) Several requests have been received in

Government to reckon the prior qualifying

service for pension after condoning the

nonqualifying sandwiched service as

break without forfeiture of past service.

3) Government have examined the matter

in detail and are pleased to order that the

prior public service shall be reckoned as

qualifying service for pension after

condoning the sandwiched non qualifying

service as break between the two services.”

A perusal of the Government Order noted above

indicates that the benefit sought for by the appellant is

provided and the sandwiched non qualifying service as break in

the two services is condonable and the prior public service

shall be reckoned as qualifying service for pension. The learned

counsel for the respondents contended that the High Court was

justified in holding that the appellant had retired on

30.06.2006, while the Government Order is dated 24.09.2014

and as such cannot be made applicable retrospectively. We are

unable to accede to such contention. In fact, the KAT had

taken note of the entire sequence and had rightly noted that

the issue had not been settled and not reached finality in the

case of the appellant since his review petition dated 17.09.2014

against the order dated 25.07.2014 was still pending when the

Government Order dated 24.09.2014 was issued. The said

Government Order in para 2 has taken note of the several

requests received to reckon the prior qualifying service.

Further, the main aspect of reckoning the service rendered in

Central Government for pensionary benefit after joining State

Government service was given effect through the Government

Order dated 12.11.2002 and 06.12.2003 i.e., when the

appellant was still in State Government service and had not

retired. The issue of condoning the break i.e., the sandwich

period was claimed immediately on retirement and it was still

being agitated. The review was rejected on 21.05.2015 only

after the Government Order dated 24.09.2014 was issued

granting the benefit of condoning the break.

15. In that view, we are of the considered opinion that the

KAT was justified in its conclusion and High Court has erred in

setting aside the same. The order dated 21.05.2019 passed by

the High Court of Kerala in O.P. (KAT) No.468 of 2017 is

therefore set aside. The order dated 14.11.2016 passed by the

KAT in O.A. No. 975 of 2015 is restored for its implementation.

The time line depicted in the said order for implementation

shall apply from this day.

16. The appeal is accordingly allowed with no order as to

costs.

17. The pending applications, if any, shall also stand

disposed of.

……………………….J.

(M.R. SHAH)

……………………….J.

(A.S. BOPANNA)

New Delhi,

October 21, 2021

No anticipatory bail =It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail.-Even in the case of a business transaction also there may be offences under the IPC more particularly sections 406, 420, 467, 468, etc. What is required to be considered is the nature of allegation and the accusation and not that the nature of accusation is arising out of a business transaction. At this stage, it is required to be noted that respondent No.2 accused has been chargesheeted for the offences punishable under sections 406 and 420, etc. and a chargesheet has been filed in the court of learned Magistrate Court.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1209 OF 2021

PREM SHANKAR PRASAD .. APPELLANT(S)

VERSUS

THE STATE OF BIHAR & ANR. .. RESPONDENT(S)

J U D G M E N T

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 14.08.2019 passed by the High Court of

Judicature at Patna in Criminal Miscellaneous Application No.

50530 of 2019, by which the High Court has allowed the said

criminal miscellaneous application and has granted anticipatory

bail to respondent No.2 herein – accused, the original informant

– complainant has preferred the present appeal.

2. That first information report came to be filed by the appellant

herein against respondent No.2 with Chapra Town Police

Station, Saran in case No.453 of 2018 for the offences

punishable under sections 406, 407, 468, 506 of the Indian

Penal Code, 1860. A warrant of arrest came to be issued by

learned Chief Judicial Magistrate, Saran, Chapra on

19.12.2018. It appears that thereafter respondent No.2 –

accused is absconding and concealing himself to avoid service

of warrant of arrest. Thereafter learned Chief Judicial

Magistrate issued a proclamation against respondent No.2

under section 82 Cr.PC. Only thereafter and issuance of

proclamation under section 82 Cr.PC, respondent No.2 –

accused filed anticipatory bail application before learned Trial

Court. By a detailed order dated 29.01.2019 the learned Trial

Court dismissed the said anticipatory bail application and

rejected the prayer for anticipatory bail on merits as well as on

the ground that as the accused is absconding and even the

proceedings under section 82/83 Cr.PC have been issued, the

accused is not entitled to the anticipatory bail. That thereafter

the accused approached the High Court by way of present

application and despite the fact that it was specifically pointed

to the High Court that since the process of proclamation under

section 82 & 83 Cr.PC have been issued, the accused should

not be allowed the privilege of anticipatory bail, ignoring the

aforesaid relevant aspect, by the impugned judgment and order

the High Court has allowed the said anticipatory bail by

observing that in the event of his arrest/surrender within six

weeks in the Court below, he may be released on bail on

furnishing bail bond of Rs.10,000/ with two sureties of the like

amount each to the satisfaction of the learned Chief Judicial

Magistrate, Saran, Chapra and subject to the conditions as laiddown under section 438 (2) of Cr.PC.

3. Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court granting anticipatory bail to

respondent No.2 – accused, the original informant/complainant

– appellant has preferred the present appeal.

4. Shri Rituraj Biswas, learned Advocate appearing on behalf of

the appellant has vehemently submitted that in the facts and

circumstances of the case, the High Court has committed a

grave error in allowing the anticipatory bail application.

4.1 It is submitted that considering the fact that the accused was

avoiding the arrest and even did not cooperate with

investigating agency and even after the arrest warrants were

issued, the proceedings under sections 8283 of Cr.PC were

initiated, the High Court ought not to allow the anticipatory bail

application.

4.2 It is submitted that though the factum of initiation of

proceedings under Section 8283 of Cr.PC was pointed out, the

High Court has simply ignored the same.

4.3 It is further submitted that even the High Court has not at all

considered the seriousness of the offences alleged namely the

offences under sections 406, 420 of IPC, which were in detail

considered by the learned Trial Court while rejecting the

anticipatory bail application.

4.4 It is submitted that the High Court has granted the anticipatory

bail to respondent No.2 solely observing that the nature of

accusation arising out of a business transaction. It is submitted

that merely because it was a business transaction, without

further considering the nature of allegations the High Court

ought not to have granted the anticipatory bail to respondent

No.2 – accused.

4.5 Relying upon the decision of this court in case of State of

Madhya Pradesh vs. Pradeep Sharma reported in (2014) 2 SCC

171, it is submitted that as observed and held by this court a

person against whom the proclamation has been issued and the

proceedings under sections 8283 of Cr.PC have been initiated,

is not entitled to the benefit of anticipatory bail.

4.6 It is further submitted that even subsequently a chargesheet

has been filed against the accused – respondent No.2 for the

offences punishable under sections 406 and 420 of IPC.

4.7 Making the above submissions and relying upon above decision

of this court, it is prayed to allow the present appeal and quash

and set aside the impugned judgment and order passed by the

High Court granting anticipatory bail to respondent No.2 –

accused.

5. Shri Devashish Bharuka, learned Advocate appearing on behalf

of the State has supported the appellant and has submitted

that on being found a prima facie case against respondent No.2

– accused, a chargesheet has been filed against the accused

under sections 406 and 420 of IPC also.

6. Shri Abhishek, learned Advocate appearing on behalf of

respondent No.2 has vehemently submitted that in the facts

and circumstances of the case, the High Court has not

committed any error in granting anticipatory bail to respondent

No.2 – accused.

6.1 It is submitted that the High Court has rightly observed that the

nature of accusation is arising out of a business transaction. It

is submitted that merely because the cheque was given and the

same came to be dishonored it cannot be said that the offences

under sections 406 and 420 of IPC is made out. It is submitted

that at the most the case may fall under section 138 of

Negotiable Instruments Act, 1881.

6.2 It is submitted that as such respondent No.2 – accused was

available for interrogation and therefore there is no question of

absconding.

6.3 It is further submitted by the learned counsel appearing on

behalf of respondent No.2 – accused that at this stage only the

chargesheet has been filed in the court, but the learned

Magistrate has yet to take cognizance of the same.

7. We have heard the learned counsel appearing on behalf of the

appellant – original informant complainant as well as learned

counsel appearing on behalf of the State and the learned

counsel appearing on behalf of respondent no.2 accused.

7.1 It is required to be noted that after investigation a chargesheet

has been filed against respondent no.2 – accused for the

offences punishable under sections 406, 420 of IPC also. Thus

it has been found that there is a prima facie case against the

accused. It has come on record that the arrest warrant was

issued by the learned Magistrate as far as back on 19.12.2018

and thereafter proceedings under sections 8283 of Cr.PC have

been initiated pursuant to the order passed by the learned Chief

Judicial Magistrate dated 10.01.2019. Only thereafter

respondent No.2 moved an application before the learned Trial

Court for anticipatory bail which came to be dismissed by the

learned Additional Sessions Judge, Saran, by a reasoned order.

The relevant observations made by the learned Additional

Sessions Judge, Saran, while rejecting the anticipatory bail

application are as under:

“Perused the record. The prosecution case as

alleged in the typed application of the informant

Prem Shankar Prasad is that the informant is a

retailer shopkeeper of medicines in the name of

Maa Medical Store, Gandhi Chauk, Chapra and the

petitioner is his stockiest who runs his business in

the name of Rajnish Pharma, Mauna Pakari. The

petitioner and the informant were on good terms,

so, the informant gave Rs. 36,00,000/ to the

petitioner in case and through cheque for purchase

of medicine. When the required were not supplied

to the informant, the informant demanded his Rs.

36,00,000/ then, the petitioner gave a cheque of

Rs. 10,00,000/ bearing cheque no. 137763 dated

25.11.2017 which was in the Canara Bank of the

petitioner which was dishonored by the bank with

a note "insufficient fund". Thereafter the informant

demanded his money in case. On 20.06.18 but, the

brothers of the petitioner misbehaved with the

informant. The brothers of the petitioner also

threatened not to contact the police or the

consequences will be worst: On this informant

Chapra Town PS No. 453/2018 was registered and

investigation proceeded.

Perused the case diary from which it transpires

that in para 4 there is a restatement of the

informant in which he has supported the

prosecution case. In para 8, 9, 10, and 11 witness

Amit Kumar Sinha, Awadhesh Kumar, Dhannu

Kumar and Uday Shankar Prasad has been

examined under section 161 of Cr.PC in which they

have supported the prosecution case. In para 16

there is supervision note of SDPO, Sadar in which

prosecution case. In found true under sections

420, 406 of IPC and 138 of NI Act. In para 23

processes under sections 82 and 83 of Cr.PC have

been issued against the petitioner in para 38 there

is a statement of witness Ashutosh Mishra who is a

medical representative and has stated that Rajnish

Srivastava, being stockiest of the medicine used to

sell the medicines of his company in course

whereof he has borrowed a sum of Rs. 7,10,000/

from him. When he asked to return back the

money he has issued a cheque of the aforesaid

amount which was dishonor by his bank due to

insufficient fund. In para 39 another witness

Pramod Kumar Thakur has been examined who

has deposed that this petitioner Rajnish Srivastava

has borrowed a sum of Rs. 10,00,000/ on the

pretext of purchasing a piece of land. When he

demanded his money back. Rajnish Srivastava

gave a cheque of the aforesaid amount which was

dishonored by the bank. The investigation in the

case is still going on.

From perusal of the case record I find that the

informant has alleged to have given a sum of Rs.

36,00,000/ to this petitioner in order to supply

certain medicines which was neither supplied nor

the amount was ever refunded. Admittedly, the

said amount was given to the petitioner on an oral

undertaking as there is nothing on record to

substantiate the aforesaid averments, but, the fact

remains that the petitioner in order to refund the

said amount has issued a cheque of

Rs.10,00,000/ bearing cheque no. 137763 dated

25.11.2017 which was deposed by the informant in

the bank, but, the same was dishonored with

record I further find that the petitioner is in the

habit of borrowing money from different persons

and then used to make default in payment

inasmuch as by issuing cheques without sufficient

balance in his account which transpires form paras

38 and 39 of the case diary.”

7.2 Despite the above observations on merits and despite the fact

that it was brought to the notice of the High Court that

respondent No.2 – accused is absconding and even the

proceedings under sections 8283 of Cr.PC have been initiated

as far as back on 10.01.2019, the High Court has just ignored

the aforesaid relevant aspects and has granted anticipatory bail

to respondent No.2 – accused by observing that the nature of

accusation is arising out of a business transaction. The specific

allegations of cheating, etc., which came to be considered by

learned Additional Sessions Judge has not at all been

considered by the High Court. Even the High Court has just

ignored the factum of initiation of proceedings under sections

8283 of Cr.PC by simply observing that “be that as it may”. The

aforesaid relevant aspect on grant of anticipatory bail ought not

to have been ignored by the High Court and ought to have been

considered by the High Court very seriously and not casually.

7.3 In the case of State of Madhya Pradesh vs. Pradeep Sharma

(Supra), it is observed and held by this court that if anyone is

declared as an absconder/proclaimed offender in terms of

section 82 of Cr.PC, he is not entitled to relief of anticipatory

bail. In paragraph 14 to 16, it is observed and held as under:

“14. In order to answer the above question, it is

desirable to refer to Section 438 of the Code which

reads as under:

“438. Direction for grant of bail to person

apprehending arrest.—(1) Where any

person has reason to believe that he may be

arrested on accusation of having committed

a nonbailable offence, he may apply to the

High Court or the Court of Session for a

direction under this section that in the event

of such arrest he shall be released on bail;

and that court may, after taking into

consideration, inter alia, the following

factors, namely—

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including

the fact as to whether he has previously

undergone imprisonment on conviction by a

court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee

from justice; and

(iv) where the accusation has been made

with the object of injuring or humiliating the

applicant by having him so arrested,

either reject the application forthwith or

issue an interim order for the grant of

anticipatory bail:

Provided that, where the High Court or, as

the case may be, the Court of Session, has

not passed any interim order under this subsection or has rejected the application for

grant of anticipatory bail, it shall be open to

an officer in charge of a police station to

arrest, without warrant the applicant on the

basis of the accusation apprehended in such

application.”

The above provision makes it clear that the power

exercisable under Section 438 of the Code is

somewhat extraordinary in character and it is to be

exercised only in exceptional cases where it appears

that the person may be falsely implicated or where

there are reasonable grounds for holding that a

person accused of an offence is not likely to

otherwise misuse his liberty.

15. In Adri Dharan Das v. State of W.B. [(2005) 4 SCC

303] this Court considered the scope of Section 438

of the Code as under : (SCC pp. 31112, para 16)

“16. Section 438 is a procedural provision

which is concerned with the personal liberty

of an individual who is entitled to plead

innocence, since he is not on the date of

application for exercise of power under

Section 438 of the Code convicted for the

offence in respect of which he seeks bail. The

applicant must show that he has ‘reason to

believe’ that he may be arrested in a nonbailable offence. Use of the expression

‘reason to believe’ shows that the belief that

the applicant may be arrested must be

founded on reasonable grounds. Mere ‘fear’

is not ‘belief’ for which reason it is not

enough for the applicant to show that he has

some sort of vague apprehension that

someone is going to make an accusation

against him in pursuance of which he may

be arrested. Grounds on which the belief of

the applicant is based that he may be

arrested in nonbailable offence must be

capable of being examined. If an application

is made to the High Court or the Court of

Session, it is for the court concerned to

decide whether a case has been made out for

granting of the relief sought. The provisions

cannot be invoked after arrest of the

accused. A blanket order should not be

generally passed. It flows from the very

language of the section which requires the

applicant to show that he has reason to

believe that he may be arrested. A belief can

be said to be founded on reasonable grounds

only if there is something tangible to go by

on the basis of which it can be said that the

applicant's apprehension that he may be

arrested is genuine. Normally a direction

should not issue to the effect that the

applicant shall be released on bail ‘whenever

arrested for whichever offence whatsoever’.

Such ‘blanket order’ should not be passed as

it would serve as a blanket to cover or

protect any and every kind of allegedly

unlawful activity. An order under Section

438 is a device to secure the individual's

liberty, it is neither a passport to the

commission of crimes nor a shield against

any and all kinds of accusations likely or

unlikely. On the facts of the case, considered

in the background of the legal position set

out above, this does not prima facie appear

to be a case where any order in terms of

Section 438 of the Code can be passed.”

16. Recently, in Lavesh v. State (NCT of Delhi) [(2012)

8 SCC 730] , this Court (of which both of us were

parties) considered the scope of granting relief under

Section 438 visàvis a person who was declared as

an absconder or proclaimed offender in terms of

Section 82 of the Code. In para 12, this Court held as

under : (SCC p. 733)

“12. From these materials and information, it

is clear that the present appellant was not

available for interrogation and investigation

and was declared as ‘absconder’. Normally,

when the accused is ‘absconding’ and

declared as a ‘proclaimed offender’, there is

no question of granting anticipatory bail. We

reiterate that when a person against whom a

warrant had been issued and is absconding

or concealing himself in order to avoid

execution of warrant and declared as a

proclaimed offender in terms of Section 82 of

the Code he is not entitled to the relief of

anticipatory bail.”

It is clear from the above decision that if anyone is

declared as an absconder/proclaimed offender in

terms of Section 82 of the Code, he is not entitled to

the relief of anticipatory bail.”

Thus the High court has committed an error in granting

anticipatory bail to respondent No.2 – accused ignoring the

proceedings under Section 8283 of Cr.PC.

8. Even the observations made by the High Court while granting

the anticipatory bail to respondent No.2 – accused that the

nature of accusation is arising out of a business transaction

and therefore the accused is entitled to the anticipatory bail is

concerned, the same cannot be accepted. Even in the case of a

business transaction also there may be offences under the IPC

more particularly sections 406, 420, 467, 468, etc. What is

required to be considered is the nature of allegation and the

accusation and not that the nature of accusation is arising out

of a business transaction. At this stage, it is required to be

noted that respondent No.2 accused has been chargesheeted

for the offences punishable under sections 406 and 420, etc.

and a chargesheet has been filed in the court of learned

Magistrate Court.

9. In view of the above and for the reasons stated above, the

impugned judgment and order dated 14.08.2019 passed by the

High Court granting anticipatory bail to respondent No.2 –

accused is unsustainable and deserves to be quashed and set

aside and is accordingly quashed and set aside. However, two

weeks’ time from the date of pronouncement of this judgment is

granted to respondent No.2 to surrender before the concerned

Trial Court and thereafter it will be open for respondent No.2 –

accused to pray for regular bail, which may be considered in

accordance with law and on its own merits. The present appeal

is accordingly allowed in the aforesaid terms.

…………………………………J.

(M. R. SHAH)

…………………………………J.

(A. S. BOPANNA)

New Delhi,

October 21, 2021.

Wednesday, October 13, 2021

As per the judgment of Perumon Bhagvathy Devaswom (supra), the Court, while dealing with the issue of condonation of delay in respect of matters pending at the appellate stage, has clearly observed that advocates usually inform the litigants who are to be in contact. Sometimes, they assure their clients that will give information to them as and when matter would be ripe for hearing. Considering the aforesaid aspect and taking a lenient view, we are of the considered opinion that the High Court erred in dismissing the second appeal solely on the ground of limitation. Therefore, the impugned judgment and order of the High Court is setaside.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6315 OF 2021

(ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 27874 OF 2018)

DR. YASHWANTRAO BHASKARRAO DESHMUKH ...APPELLANT

VERSUS

RAGHUNATH KISAN SAINDANE …RESPONDENT

J U D G M E N T

J.K. MAHESHWARI, J.

Leave granted.

2. This appeal arises out of the judgment passed on

7.8.2018 by the High Court of judicature of Bombay, Bench at

Aurangabad on Civil Application No. 12143 of 2017 in Second

Appeal (ST) No. 31286 of 2017 dismissing the application

seeking condonation of delay and the appeal as barred by

limitation.

3. The facts leading to file this appeal are that a suit for

specific performance of the contract was filed by the

respondent against the appellant based on an agreement to

sell dated 18.2.1998 with respect to an agricultural land

bearing Gat No. 21/1, admeasuring 1.54 hectares, situated at

Maouje Hingone Sim Tehsil Amalner. The said suit was partly

decreed exparte by judgment dated 9.12.2002 in Special Civil

Suit No. 2 of 2001 by Civil Judge (Sr. Division), Amalner

directing recovery of a sum of Rs. 61,000/ along with interest

@ 6% p.a. from the appellant (defendant therein), while relief

for specific performance of contract was denied.

4. Respondent preferred first appeal before the High Court.

The appellant was duly served and appeared in the said

matter through the counsel. However, due to enhancement of

pecuniary jurisdiction of the District Court, the said appeal

stood transferred from the High Court to the District Court.

Thereafter, a fresh notice was issued to the appellant, which

was served through paper publication. The appellant did not

appear, and taken pretext of nonservice of the notice due to

change of his address. The Adhoc District JudgeI, Amalner

proceeding exparte, allowed the Regular Civil Appeal No. 31 of

2012 vide judgment dated 8.09.2015 and granted decree of

specific performance in favour of respondent (plaintiff therein).

5. Aggrieved by the judgment of the Adhoc District JudgeI,

appellant filed second appeal before the High Court of

judicature of Bombay, Bench at Aurangabad on 18.9.2017,

inter alia, contending that the judgment passed by the Ist

Appellate Court came to his knowledge only on 14.9.2017.

There was a delay of 650 days in filing the appeal. However,

explaining the delay due to lack of knowledge of the decision

in the appeal, prayer for condonation was made.

6. By the impugned judgment dated 07.08.2018, passed by

the High Court in Second Appeal (ST) No. 31286 of 2017, the

application seeking condonation was rejected, observing that

the plea of non service of notice due to change of address was

not acceptable. It was also observed that the appellant had

himself been negligent and had not contacted his counsel

engaged in the lower appellate court. The High Court,

however, observed that the respondent, who had been

litigating since last 17 years, ought not be deprived of the

valuable right as accrued to him. With these observations, the

application seeking condonation was rejected, dismissing the

second appeal, as time barred.

7. Learned counsel for the appellant has strenuously urged

that the suit was filed for specific performance of contract. As

per the defence taken, it is visible from the agreement itself

that it was not an agreement to sell but a money transaction,

to which a sum of Rs. 90,000/ has been refunded and only

sum of Rs. 51,000/ was remaining. In addition, Rs. 10,000/

paid later and endorsed therein. The trial court decreed the

suit partly, for refund of earnest amount. The decree of

specific performance is a discretionary relief, as specified

under Section 16 of the Specific Relief Act. However, without

giving an opportunity of hearing to contest the claim, the

lower appellate court allowed the appeal of the respondent and

passed an exparte judgment and decree of specific

performance. Counsel argued that the dismissal of the

second appeal on the ground of limitation is wholly

unreasonable.

8. In support of the contentions, reliance has been placed

on a judgment of this Court in the case of Perumon

Bhagvathyu Devaswom Perinadu Village vs. Bhargavi

Amma (dead) by LRS and Others (2008)8SCC 321 to contend

that when appeal is pending in the appellate court where

periodical dates are not being given, the parties cannot be

faulted with because the counsel informs the parties that they

will get in touch as and when the case is listed for hearing.

Considering the facts of the case in which the notice of the

appeal sent by publication is not allegedly served and the

documents of change of address have been filed by the

appellant as well as the respondent, which are on record, in

such a situation, lenient view ought be taken.

9. Reliance is further placed on the judgment of this Court

in N. Mohan vs. R. Madhu 2019(16)SCALE 602. In the said

case, considering the facts and circumstances of the case and

in the interest of justice, an opportunity was granted subject

to deposit of the amount.

10. Reliance is further placed on the decision of this Court in

Rohin Thapa vs. Rohit Dora (2019) 7 SCC 359, wherein this

Court subject to direction of deposit of the amount of the

agreement and further deposit of the amount of the stamp

and registration fee, directed to condone the delay and also

setaside the sale deed, executed by the Court. Therefore, an

opportunity in a suit of specific performance to the appellant

may be granted condoning the delay subject to imposition of

the conditions, as deemed fit.

11. Per contra, learned counsel representing the respondent

contends that a suit for specific performance of contract was

filed long back and respondent is contesting the matter for the

last 20 years. In the said suit in trial court, the appellant

remained exparte. However, the suit was partly decreed. On

filing a first appeal before the High Court, notice was served

and the appellant was represented through an advocate.

Later, due to enhancement of pecuniary jurisdiction, the said

appeal stood transferred to the court of Adhoc District

JudgeI, Amalner, where from notice of the appeal was served

through publication. The appellant did not choose to appear

before the Ist Appellate Court, however the suit seeking

specific performance was decreed. The appellant remained

exparte and on filing the execution, the sale deed has also

been executed. The appeal filed before the High Court by the

appellant was barred by limitation of 650 days, which has not

been explained showing bona fides. In such a case,

interference by this Court is not warranted.

12. Having heard learned counsel for the parties and on

perusal of the facts of the case, suit seeking specific

performance was based on an agreement to sell dated

18.2.1998. As per the said agreement to sell, appellant had

agreed to sell 5 bighas of land for a consideration at the rate

of Rs. 51000/ per bigha. As per the entries on the

agreement to sell, certain amount was paid. Later on, certain

refund is also recorded and acknowledged thereon. The Trial

Court, considering the same, refused to grant a decree of

specific performance but directed for refund of Rs. 61,000/

with interest. The said decree was reversed by the lower

Appellate Court, directing specific performance. In both the

courts, the appellant remained exparte.

13. The appellant filed an appeal before the High Court,

which has been dismissed as barred by limitation. The High

Court, while dismissing the application seeking condonation of

delay in filing second appeal observed that sufficient cause for

delay has not been established. The litigant, who is contesting

the matter, cannot be negligent and it would be unfair to

deprive the respondent, litigating for the last 17 years, of the

valuable right that has accrued to him.

14. In this case, the appellant has also produced the

documents including voters list/aadhar card showing his

change of address from Amalner to Nashik. On the other

hand, the respondent has produced the voters’ list of

Amalner itself contending that the name of appellant is still

existing. However, in such a situation without any enquiry

and without arriving at a finding disbelieving the explanation

of the appellant, the High Court was not justified in rejecting

the application for condonation of delay.

15. As per the judgment of Perumon Bhagvathy Devaswom

(supra), the Court, while dealing with the issue of condonation

of delay in respect of matters pending at the appellate stage,

has clearly observed that advocates usually inform the

litigants who are to be in contact. Sometimes, they assure

their clients that will give information to them as and when

matter would be ripe for hearing. Considering the aforesaid

aspect and taking a lenient view, we are of the considered

opinion that the High Court erred in dismissing the second

appeal solely on the ground of limitation. Therefore, the

impugned judgment and order of the High Court is setaside.

16. A second appeal lies to the High Court if the High Court

is satisfied that a substantial question of law is involved. We

request the High Court to take up the second appeal for

admission as expeditiously as possible, preferably within one

month, and if the second appeal is admitted, to decide and

finally dispose of the same within a period of six months from

the date of communication of this judgment and order.

17. It is made clear here that any of the observations made

hereinabove would not be treated as an expression on the

merits of second appeal and would not cause any impediment

to the parties.

18. Appeal is, thus, disposed of in the aforesaid terms. No

order as to costs.

……………………………J.

[ INDIRA BANERJEE ]

……………………………J.

[ J.K. MAHESHWARI ]

NEW DELHI;

OCTOBER 8, 2021.

whether in an appeal/application filed under Section 34 of the Arbitration & Conciliation Act, 1996 read with Section 19 of the MSME Act, 2006, the appellate court would have any discretion to deviate from deposit of 75% of the awarded amount as a pre-deposit?

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6252 OF 2021

Gujarat State Disaster Management

Authority …Appellant

Versus

M/s Aska Equipments Limited …Respondent

J U D G M E N T

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 26.09.2019 passed by the High Court of Uttarakhand at

Nainital in Writ Petition (MS) No. 2708/2019, by which the High Court

has dismissed the said writ petition and has confirmed the order passed

by the learned Additional District Judge (Commercial), Dehradun in

Miscellaneous Application No. 150 of 2018, whereby the appellant

herein was directed to deposit 75% of the awarded amount in terms of

Section 19 of Micro, Small and Medium Enterprises Development Act,

2006 (hereinafter referred to as the ‘MSME Act, 2006’), the appellant

herein – original appellant/applicant has preferred the present appeal.

2. That the parties are governed by the provisions of the MSME Act,

2006. A dispute arose between the parties regarding payment of goods

which was taken by the appellant. The proceedings under Section 18 of

the MSME Act, 2006 commenced. The Facilitation Council passed an

award dated 10.11.2017 in favour of the respondent herein and directed

the appellant to pay a sum of Rs. 105,053,387/- (Rs. Ten crores Fifty

Lakhs Fifty Three Thousand Three Hundred and Eighty Seven only).

3. Feeling aggrieved by the said award, the appellant preferred an

application before the learned Additional District Judge (Commercial),

Dehradun under Section 34 of the Arbitration & Conciliation Act, 1996

read with Section 19 of the MSME Act, 2006. As per Section 19 of the

MSME Act, 2006, the appellant was required to deposit 75% of the

amount awarded by the arbitrator. Several opportunities were given to

the appellant to deposit 75% of the awarded amount. An application for

waiver of pre-deposit was preferred which came to be dismissed. That

thereafter vide order dated 22.08.2019, the learned Additional District

Judge (Commercial), Dehradun granted a month’s time, as a last

opportunity, to the appellant to deposit the said amount.

4. Feeling aggrieved by the said order, the appellant herein preferred

writ petition before the High Court. By the impugned judgment and

order, the High Court has dismissed the said writ petition. Even while

dismissing the writ petition, the High Court granted further eight weeks’

time to the appellant to deposit 75% of the awarded amount.

5. Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court, the appellant herein – original

applicant has preferred the present appeal.

6. Today, when the present appeal is taken up for further hearing,

Shri Ajay Kumar, learned Advocate appearing on behalf of the appellant

has submitted that in the present case while issuing notice on

23.10.2019, this Court directed the appellant to deposit a sum of

Rs.2,50,00,000/- (Rs. Two crores Fifty lakhs) before the appellate

authority and on such deposit the learned appellate Court was directed

to take up the appeal on file and proceed with the same. It is stated that

pursuant to the said order, the appellant has deposited a sum of Rs.

2,50,00,000/- (Rs. Two Crores Fifty Lakhs) and thereafter the learned

appellate authority - Additional District Judge (Commercial), Dehradun

has heard the appeal/application under Section 34 of the Arbitration &

Conciliation Act, 1996 read with Section 19 of the MSME Act, 2006 and

the order is to be pronounced on 12.10.2021. Therefore, it is prayed to

dispose of the present appeal.

7. Learned Advocate appearing on behalf of the respondent has

submitted that, as such, it is mandatory to deposit 75% of the awarded

amount as a pre-deposit at the time when the appeal/application under

Section 34 of the Arbitration & Conciliation Act, 1996 read with Section

19 of the MSME Act, 2006 is preferred. It is submitted that what is

directed to deposit vide ex-parte order dated 23.10.2019 is not even

25% of the amount awarded. It is submitted that the question involved in

the present appeal is a pure question of law and therefore the same may

be decided by this Court even for future guidance.

7.1 Learned counsel for the respondent has further submitted that, as

such, the issue involved in the present case is squarely covered against

the appellant in view of the decision of this Court in the case of

Goodyear India Limited v. Norton Intech Rubbers Private Limited, (2012)

6 SCC 345. It is submitted that the very provision of MSME Act, 2006 –

Section 19 has been interpreted by this Court and it is observed and

held that requirement of deposit of 75% as a pre-deposit is mandatory. It

is submitted that even the expression “in the manner directed by such

court” in Section 19 has been interpreted by this Court and it is held that

the expression “in the manner directed by such court” would indicate the

discretion given to the Court to allow the pre-deposit to be made, if felt

necessary, in instalments. It is submitted that otherwise the deposit of

75% as a pre-deposit is mandatory and the appellate court would have

no discretion at all to deviate from the mandate under Section 19 of the

MSME Act, 2006.

8. Learned counsel appearing on behalf of the appellant is not in a

position to show any contrary decision to the decision of this Court in the

case of Goodyear India Limited (supra). He is also not in a position to

satisfy whether the appellate court would have any discretion to deviate

from the requirement of deposit of 75% as a pre-deposit while preferring

the appeal/application under Section 34 of the Arbitration & Conciliation

Act read with Section 19 of the MSME Act, 2006.

9. We have heard the learned counsel for the respective parties at

length.

The short question posed for the consideration of this Court is,

whether in an appeal/application filed under Section 34 of the Arbitration

& Conciliation Act, 1996 read with Section 19 of the MSME Act, 2006,

the appellate court would have any discretion to deviate from deposit of

75% of the awarded amount as a pre-deposit?

9.1 Section 19 of the MSME Act, 2006 reads as under:

“19. Application for setting aside decree, award or order – No application

for setting aside any decree, award or other order made either by the

Council itself or by any institution or centre providing alternate dispute

resolution services to which a reference is made by the Council, shall be

entertained by any court unless the appellant (not being a supplier) has

deposited with it seventy-five per cent of the amount in terms of the

decree, award or, as the case may be, the other order in the manner

directed by such court:

Provided that pending disposal of the application to set aside the decree,

award or order, the court shall order that such percentage of the amount

deposited shall be paid to the supplier, as it considers reasonable under

the circumstances of the case, subject to such conditions as it deems

necessary to impose.”

(bold words are ours)

9.2 On a plain/fair reading of Section 19 of the MSME Act, 2006,

reproduced hereinabove, at the time/before entertaining the application

for setting aside the award made under Section 34 of the Arbitration &

Conciliation Act, the applicant/appellant has to deposit 75% of the

amount in terms of the award as a pre-deposit. The requirement of

deposit of 75% of the amount in terms of the award as a pre-deposit is

mandatory. However, at the same time, considering the hardship which

may be projected before the appellate court and if the appellate court is

satisfied that there shall be undue hardship caused to the

appellant/applicant to deposit 75% of the awarded amount as a predeposit at a time, the court may allow the pre-deposit to be made in

instalments.

10. An identical question came to be considered by this Court in the

case of Goodyear India Limited (supra). In paragraphs 10 & 11, this

Court observed and held as under:

“10. In his submissions, Mr Ramachandran has referred to the various

decisions, all of which, however, are in the context of enactments in which

discretion has been left to the appellate body to either waive or reduce the

amount of pre-deposit, which factor is absent in the present case. In

support of his contention, however, he referred to and relied upon the

decision of this Court in Snehadeep Structures (P) Ltd. v. Maharashtra

Small-Scale Industries Development Corpn. Ltd. (2010) 3 SCC 34 wherein

while considering the question as to whether an application under Section

34 of the Arbitration and Conciliation Act, 1996, could be treated to be an

appeal, a question incidentally arose as to whether if the same was to be

treated as an appeal, would it be necessary to comply with the provisions

of Section 19 of the 2006 Act. Their Lordships observed that the provision,

no doubt, requires pre-deposit to be made before an application under

Section 34 of the Arbitration Act is filed, but that they were not inclined to

read that provision into the provision in question. The facts of the said

case are different from the facts of this case and it would be difficult to

import the ratio of the decision in the above case into the facts of this

case.

11. Having considered the submissions made, both on behalf of the

petitioner and on behalf of the respondents, we do not see any reason to

interfere with the views expressed, both by the learned Single Judge, as

also the Division Bench with regard to Section 19 of the 2006 Act. It may

not be out of place to mention that the provisions of Section 19 of the

2006 Act, had been challenged before the Kerala High Court in Kerala

SRTC v. Union of India [(2010) 1 KLT 65], where the same submissions

were negated and, subsequently, the matter also came up to this Court,

when the special leave petitions were dismissed, with leave to make the

pre-deposit in the cases involved, within an extended period of ten

weeks. We may also indicate that the expression “in the manner directed

by such court” would, in our view, indicate the discretion given to the

court to allow the pre-deposit to be made, if felt necessary, in

instalments.”

11. In view of the above and considering the language used in Section

19 of the MSME Act, 2006 and the object and purpose of providing

deposit of 75% of the awarded amount as a pre-deposit while preferring

the application/appeal for setting aside the award, it has to be held that

the requirement of deposit of 75% of the awarded amount as a predeposit is mandatory. Therefore, as such, both the High Court as well as

the learned Additional District Judge (Commercial), Dehradun were

justified in directing the appellant to deposit 75% of the awarded amount

as a pre-deposit.

However, at the same time, considering the fact that while issuing

notice in the present proceedings on 23.10.2019, this Court passed the

following order:

“Permission to file the special leave petition is granted.

In an appeal filed by the petitioner-Gujarat State Disaster Management

Authority, a Public Sector Undertaking of the State of Gujarat, challenging

the award passed under the Micro, Small and Medium Enterprises

Development Act, 2006 by the Facilitation Council, pursuant to Section 19

of the said Act the petitioner-Authority was directed to deposit 75% of the

Award amount as conditional pre-deposit for taking the appeal on file.

Being aggrieved by the direction for pre-deposit of the amount the

petitioner-Authority has preferred this special leave petition.

We have heard Mr. Huzefa Ahmadi, learned senior counsel appearing for

the petitioner-Authority, who has submitted that the entire amount payable

to the respondent-supplier has already been paid to the respondentsupplier and hence there is no necessity to make pre-deposit for filing the

appeal. Arguments advanced by learned senior counsel is on the merit of

the matter.

Having regard to the facts and circumstances and considering the fact that

the petitioner-Authority is a Public Sector Undertaking, in exercise of the

discretion vested with the court under Section of the said Act, we direct the

petitioner-Authority to deposit Rs.2,50,00,000/- before the Appellate

Authority within a period of four weeks from today. On such deposit, the

District and Sessions Judge, Dehradun, is directed to take up the appeal

on file and proceed with the same.

Issue notice to the respondent.

On deposit of Rs.2,50,00,000/- (Rupees Two Crore Fifty Lakhs), the same

shall be invested in a fixed deposit in a nationalised bank for a period of

three months with auto renewal so that it may enure to the benefit of the

successful party and the disbursement of the same shall await further

orders from this Court.”

and directed the appellant to deposit Rs. 2,50,00,000/- (Rupees Two

Crores Fifty Lakhs) and on such deposit the District and Sessions Judge,

Dehradun was directed to take up the appeal on file and proceed with

the same. It is reported that by now the application/appeal has been

heard and the order is to be pronounced on 12.10.2021, we continue

with the arrangement as per order dated 23.10.2019 in the

appeal/application under Section 34 of the Arbitration & Conciliation Act

is finally decided and disposed of. We hope and trust that the learned

Additional District Judge (Commercial), Dehradun shall pronounce the

order at the earliest and more particularly on 12.10.2021, the date on

which order is to be pronounced, as reported.

12. With the aforesaid, the question posed is answered against the

appellant in terms of the above and we dispose of the appeal laying

down the law in terms of the above, however, as observed hereinabove,

continue with the interim arrangement as per order dated 23.10.2019 till

final disposal of the appeal/application under Section 34 of the Arbitration

& Conciliation Act, 1996 read with Section 19 of the MSME Act, 2006,

which shall not be treated as a precedent.

………………………………….J.

[M.R. SHAH]

NEW DELHI; ………………………………….J.

OCTOBER 08, 2021. [A.S. BOPANNA]

Insofar as the charge alleged against the appellant under Section 506 of IPC, it is noticed that the charge alleged against the appellant is that on the date referred to i.e 02.08.2013, the appellant threatened to kill the prosecutrix, the daughter of the complainant and therefore had committed the offence which is punishable under Section 506 IPC. In respect of the said charge we do not find that there is any supporting evidence except the vague statement of the prosecutrix in her evidence as PW3 that whenever she shouted when he had attempted to have sexual acts with her, the appellant had threatened her not to say anything to anyone as otherwise he would kill her. There is no other statement or evidence relating to the incident or the manner in which the threat in its true sense was put forth.-In the result we make the following order: (i) The conviction and sentence under Section 363, 366, and Section 4 of POCSO Act is confirmed. The conviction under Section 506 IPC is set aside.(ii) The conviction order made by the trial court and confirmed by the High Court under Section 376 D IPC is modified. The appellant is instead convicted under Section 376 IPC and is sentenced, for the period undergone. The fine and default sentence as imposed by the trial court shall remain unaltered. (iii) Since the custody certificate dated 20.09.2013 indicates that the appellant has undergone sentence for more than 8 years, the appellant is ordered to be released on payment of fine as all the sentences have run concurrently and if he is not required to be detained in any other case. (iv) The appeal is accordingly allowed in part.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1167 OF 2021

(Arising out of SLP(Criminal) No. 7828/2019)

Manoj Mishra @ Chhotkau .…Appellant(s)

Versus

The State of Uttar Pradesh ….Respondent(s)

J U D G M E N T

A.S. Bopanna,J.

1. The appellant is before this Court assailing the judgment

dated 14.03.2018 passed by the High Court of Judicature at

Allahabad, Lucknow Bench in Criminal Appeal No.1102/2017.

Through the said judgment, the High Court has dismissed the

appeal and confirmed the conviction and sentence ordered to

the appellant by the Additional Sessions Court and Special

Judge POCSO Act, Bahraich in C.C. No.18/2014. The appellant

herein was arrayed as Accused No.4 in the said case.

2. The brief facts leading to the conviction and sentence of

the appellant is that the father of the prosecutrix filed a written

report dated 09.08.2013 at 22:35 hours before the police

alleging therein that one Ramasre alias Siri had enticed his

daughter aged about 14 years on 02.08.2013 and had taken

her away. In the said complaint, it was further alleged that

Raksharam, Nangodiya and Manoj Kumar alias Chhotkau i.e.

the appellant herein had cooperated with him in the alleged

incident. An FIR was lodged in Crime No.625/2013 under

Sections 363 and 366 IPC. The prosecutrix was found by the

police along with Ramasre alias Siri. She was brought back and

subjected to medical examination. The case was investigated

and a charge sheet was filed under Sections 363, 366, 376 and

506 Indian Penal Code (for short ‘IPC’) as also sections 3 and 4

of Protection of Children from Sexual Offences Act (for short

‘POCSO Act’). The Court had thereafter framed the charges

against the accused. On the accused denying the charge, trial

was conducted. The father and mother of the prosecutrix were

examined as PW1 and PW2 respectively, while the prosecutrix

herself was examined as PW3. Dr. Rabia Sultan who had

conducted the medical examination on the prosecutrix was

examined as PW4. The Constable Pramod Kumar Shah who

had carried the FIR was examined as PW5 and the SubInspector Tara Prasad Pandey who had investigated the case

was examined as PW6.

3. The trial court having analysed the said evidence which

was tendered before it, also taking into consideration the denial

put forth by the accused while recording the statement under

Section 313 of Criminal Procedure Code (for short ‘Cr.PC’) had

arrived at the conclusion that the charge alleged against the

accused was proved. Accordingly the accused were sentenced

to (i) 3 years rigorous imprisonment with fine of Rs.3000/ for

the offence under Section 363 IPC; (ii) 5 years rigorous

imprisonment with fine of Rs.5,000/ for the offence under

Section 366 IPC; (iii) 20 years rigorous imprisonment with fine

of Rs.25,000/ for the offence under Section 376D IPC; (iv) 2

years rigorous imprisonment with fine of Rs.2,000/ under

Section 506 IPC and (v) 7 years rigorous imprisonment with

fine of Rs.7,000/ for the offence under Section 4 of POCSO

Act. The default sentence for nonpayment of the fine was also

imposed and the sentence for the offence under the said

provisions were ordered to run concurrently through the

judgment dated 20.05.2015. Through the said judgment one of

the accused Raksharam was acquitted on holding that the

charges against him were not proved.

4. The appellant had assailed the said judgment before the

High Court in Criminal Appeal No.1102/2017. The learned

Judge while adverting to the evidence tendered before the trial

court had reappraised the same in the background of the

contentions that were urged and, in that light, had arrived at

the conclusion that the appellant had raped the prosecutrix

number of times after being enticed away by him. In that view

of the matter the learned Judge was of the opinion that the trial

court had rightly arrived at the conclusion on the basis of the

prosecution evidence that the appellant was involved in the

commission of the crime. The judgment of conviction and

sentence was accordingly confirmed. The appellant therefore

claiming to be aggrieved by the judgment passed by the learned

Judge of the High Court is before this Court in this appeal.

5. We have heard Mr. Anoop Prakash Awasthi learned

counsel appearing for the appellant, Mr. Parmanand Pandey

learned standing counsel for the State of Uttar Pradesh and

perused the appeal papers.

6. The learned counsel for the appellant while seeking to

contend that the trial court as also the High Court had

committed an error in convicting and upholding the conviction

would seek to refer to the contradictions in the very manner in

which the complaint was initiated and the various statements

made by the prosecutrix herself. It is contended that the

criminal proceedings was set in motion by the complaint dated

09.08.2013 wherein it has been stated that his daughter has

been tricked and enticed, therefore eloped somewhere. When a

statement was recorded on 10.08.2013, he has alleged that

Ramasre alias Siri had enticed his minor daughter and his

statements had been varying from time to time. It is his case

that even the prosecutrix has made contradicting statements

with regard to the nature of the incident as also her age. In that

light, it is contended that the entire theory of the prosecutrix

being kidnapped, enticed or being raped in the manner as has

been put forth is not reliable. It is contended that even with

regard to the manner in which the prosecutrix had stated of

having gone with Ramasre alias Siri, it only indicates that it

was consensual and in any event the appellant has been

named only thereafter when a statement was recorded under

Section 164 Cr.PC. Though in her evidence as PW3 she has

stated, with regard to the incident; in her crossexamination

she has stated, with regard to the physical relation she had for

the first time which had been told by her to the family but has

again stated that she disclosed the same when she was four

months’ pregnant and the family members enquired her about

the same.

7. The learned counsel therefore contends that neither the

evidence of the parents who were examined as PW1 and PW2

nor the evidence tendered by the prosecutrix as PW3 was

reliable and the trial court as well as the High Court ought not

to have passed the conviction and sentence on such evidence.

Though PW4 in her evidence and with reference to the medical

examination report has stated about the prosecutrix being

pregnant and the foetus being of 2023 weeks, that by itself

cannot establish the charge made against the appellant is his

contention. Alternatively, it is contended that even if the

statement of the prosecutrix about the physical relations of the

appellant with her and that she has filed the complaint when

the appellant had refused to marry her despite she becoming

pregnant is accepted, it only indicates that it was consensual

and when she herself has stated that she was 20 years and

also when PW4 the doctor in her crossexamination has

indicated that due to the development of her body even if she is

stated to be 1617 years there could be variation and it can be

1718 years as per general variations. In such event, the charge

would not be sustainable. Even otherwise, in the facts and

circumstance, the conviction under Section 376D IPC is not

justified and said provision ought not to have been invoked as

it does not qualify to be a gang rape. For all the said reasons,

he contends that the judgment is liable to be set aside.

8. The learned standing counsel for the State of Uttar

Pradesh contends that the trial court as also the High Court

has referred to the evidence available on record. Though there

may be certain discrepancies in the various statements the

same cannot qualify as contradictions and in that circumstance

when PW1, PW2 and PW3 have all stated with regard to the

incident in support of the prosecution and when there is

categorical medical examination to indicate that the prosecutrix

was pregnant, the charge would stand established. It is

contended that in such circumstance when the father of the

prosecutrix has indicated the age as 14 years and the doctor

also has indicated the age to be around 16 years, the

contention of the consensual sex will not be acceptable. In that

view he contends that the judgment passed by the trial court as

also the High Court does not call for interference.

9. In the light of the above, we have taken note of the

nature of consideration made by the trial court as also the High

Court. In so far as the incident based on which the charge was

framed against the accused, more particularly against the

appellant, the parents of the prosecutrix and the prosecutrix

herself were examined as PW1 to PW3 who have spoken with

regard to the same. Though reference was made to the

complaint and the statement of PW1 and at the first instance

the complainant having named Ramasre alias Siri, it was in the

circumstance when he had noticed that the prosecutrix, i.e. his

daughter was not in the house and had accordingly lodged the

complaint on suspicion. It is pursuant to the complaint when

the police took action, the prosecutrix and the said Ramasre

alias Siri were retrieved by the police when they were travelling

to Mumbai as per the very statement recorded by the

prosecutrix under Section 164 Cr.PC. In that circumstance

what would be relevant is the statement and the evidence

tendered by the prosecutrix as PW3 before the trial court

which described the events prior thereto and the circumstance

which forced her to be with Ramasre alias Siri at that point.

Though certain discrepancies were referred to by the learned

counsel for the appellant in the manner the prosecutrix had

described the incident to contend that as per her own

statement the thatched hut was open from all sides and the act

was alleged to be committed during the day time which cannot

be probable, it is noticed that the sum and substance of the

evidence tendered by the prosecutrix as PW3 is essentially

with regard to the physical relationship she had with the

appellant due to which she had become pregnant and this was

disclosed to her family members only when they had noticed

her to be pregnant. She has further stated that in that

situation when she had insisted on the appellant marrying her,

he had refused, threatened and he had taken the help of the

coaccused and got her married to Ramasre alias Siri, by

enticing and taking her away.

10. In that background, the fact that the appellant had

physical relationship with the prosecutrix on more than one

occasion and the prosecutrix had not disclosed the same to her

parents when it had happened for the first time about four

months earlier but was brought to their notice when her

pregnancy was noticed will have to be viewed from the stand

point as to whether the charges as framed would stand

established. It is no doubt true that the prosecutrix in her

deposition has stated that on the day of the incident the

appellant, Ramasre alias Siri, Nangodiya etc. had caught hold

of her. However, there is no specific indication as to whether

the other accused and the appellant had indulged in sexual act

along with the appellant herein or the reference is with regard

to that they having assisted the appellant in enticing and

taking her away on the date of the complaint so as to marry her

of to Ramasre alias Siri. What is also to be taken note of, is

that the said Ramasre alias Siri and Nangodiya are siblings

being the sons of Raksharam who was acquitted by the trial

court. To establish common intention on their part in

furthering the sexual assault committed by the appellant, there

is convincing evidence to that effect.

11. From the evidence tendered by PW2 to PW3, more

particularly the evidence of PW4 i.e., the doctor who examined

the prosecutrix it would disclose that she had examined the

prosecutrix at 7 pm on 19.08.2013. She has stated that the

victim who was unmarried was fully grown up and on

conducting the necessary tests it was seen that the rupture of

the hymen was old and she was found to be 24 weeks into her

pregnancy. The medical report was exhibited as K2. The

complementary report dated 24.08.2013 was marked as exhibit

K4. In the crossexamination she has referred to the age of

prosecutrix as 16 to 17 years. Though she has stated that it

could be 17 to18 years as per general variations, no definite

opinion to that effect has been given by her. In the crossexamination she has however stated that the pregnancy was of

23 weeks. The report of the doctor indicates it to be 23 weeks

while the pathology report gives the status of the single alive

foetus of 20 weeks 2 days as on 20.08.2013. Though there is

marginal variation with regard to the number of weeks

mentioned, the pregnancy was not less than 20 weeks and if

the same is kept in the backdrop, the statement of the

prosecutrix that the appellant had intercourse with her for the

first time, four months earlier, which is an approximate

indication and that she became pregnant would coincide with

the period. Though there are minor discrepancies with regard

to the statement made under Section 164 Cr.PC and the

evidence tendered by the prosecutrix as PW3, the thrust of the

allegation has been that the appellant had committed physical

contact with her against her will. In such circumstance, the

evidence of the prosecutrix and the medical evidence would

establish the charge of rape.

12. The question which would however arise for our

consideration is as to whether the charge framed against the

accused under Section 376 D IPC would be justified and as to

whether the case would qualify to be one of gang rape. On this

aspect, the evidence of PW1 and PW2 does not establish the

same. The evidence of PW3 i.e., the prosecutrix is not

categorical in as much as the prosecutrix has alleged that when

she was sitting in her thatched hut, the appellant came after

parking his vehicle (tractor) besides the road and asked for

water. At that time, he asked where her father was and after

she told that he had gone out, the appellant had forced himself

upon her. She has further alleged that he kept doing the wrong

act with her for four months and she became pregnant. When

she disclosed the pregnancy and asked the appellant to marry

her, he did not yield. Therefore, insofar as the incident of rape

attributed to the appellant it does not disclose that all the

accused had committed rape on her or had the common

intention and aided the commission. It is no doubt true that

she refers to the incident on the day she was said to have been

taken away by all the accused. In that regard except stating

that she was carried to the home of a lady who they were

calling as Aunty, and at her place committed sexual act there is

no other evidence available on record to indicate that the spot

was visited in the course of the investigation and the lady who

is alleged to have aided has either been apprehended or

examined. It is also not established that all of them were seen

together or aided with common intention.

13. In fact, the very conclusion reached by the High Court

itself would indicate that the allegation of rape as established

by the prosecution is against the appellant and the other

accused are not involved in such act. The relevant conclusions

read as hereunder:

“23. It has also been placed before the court that the

other coaccused were real brothers and their father, as

such the truthfulness of the incident is highly

improbable. The main cooperation of other coaccused

appears to be in enticing the prosecutrix away but the

allegation of specific rape has been levelled against the

present accusedappellant only and that too four

months prior to the incident on one threat or the other.

This also gives a reason for enticing her away and

getting her married to Ram Asrey alias Sirri.

26. To conclude, the prosecutrix was raped by the

accusedappellant number of times after being enticed

away by him and also before the incident the

truthfulness or reliability of her statement is

undoubtful and there is nothing which may negate the

acceptance of her testimony. In the instance, the

commission of alleged crime against the prosecutrix

cannot be ruled out.

27. In view of above, it is difficult to comprehend the

circumstances in which the charge of rape and

enticement against the accusedappellant cannot be

levelled. The reason given by the trial court for

conviction of the appellant are sufficient enough to hold

him guilty.”

14. Further, when the prosecutrix was traced based on the

complaint lodged by her father all of them were not with her

but she was found only with Ramasre @ Siri. That apart, as

noted the other three accused apart from the appellant are the

siblings and their father Raksharam has been acquitted by the

trial court. In that circumstance, the charge of gang rape has

not been established with convincing evidence. However, having

already noted that the incident of rape alleged had been

established, it would be a case to convict the appellant under

Section 376 of IPC. However, the conviction handed down by

the trial court and confirmed by the High Court under Section

363, 366 and under Section 4 of POCSO Act and the sentence

as ordered thereunder would not call for interference.

15. Insofar as the charge alleged against the appellant under

Section 506 of IPC, it is noticed that the charge alleged against

the appellant is that on the date referred to i.e 02.08.2013, the

appellant threatened to kill the prosecutrix, the daughter of the

complainant and therefore had committed the offence which is

punishable under Section 506 IPC. In respect of the said

charge we do not find that there is any supporting evidence

except the vague statement of the prosecutrix in her evidence

as PW3 that whenever she shouted when he had attempted to

have sexual acts with her, the appellant had threatened her not

to say anything to anyone as otherwise he would kill her. There

is no other statement or evidence relating to the incident or the

manner in which the threat in its true sense was put forth. In

that view, we are or of the opinion that the conviction and

sentence under Section 506 imposed by the trial court and

affirmed by the High Court is not sustainable and is liable to be

set aside.

16. On arriving at the conclusion that the appellant is liable

to be convicted under Section 376 IPC and not under Section

376 D IPC, the appropriate sentence to be imposed needs

consideration. The incident in question is based on the

complaint dated 09.08.2013. In this circumstance, though it is

noted that Section 376 has been amended w.e.f. 21.04.2018

providing for the minimum sentence of 10 years, the case on

hand is of 2013 and the conviction of the appellant was on

20.05.2015. The incident having occurred prior to amendment,

the preamended provision will have to be taken note. The same

provides that a person committed of rape shall be punished

with rigorous imprisonment for a term which shall not be less

than seven years but which may extend to imprisonment for life

and shall also be liable to fine. In the instant case, taking into

consideration all facts including that no material is available on

record to indicate that the appellant has any criminal

antecedents and that he is also a father of five children and the

eldest son is more than 18 years, it appears that there is no

reason to apprehend that the appellant would indulgence

similar acts in future. In that circumstance, we deem it

appropriate that the sentence of 7 years would have been

sufficient deterrent to serve the ends of justice. From the

custody certificate dated 05.12.2017 issued by the Jail

Superintendent, District Jail, Bahraich, it is noticed that the

appellant has been in custody from 20.09.2013. If that be the

position, he has been in custody and served the sentence for

more than 8 years which shall be his period of sentence. As

such he has served the sentence imposed by us except

payment of fine. The fine and default sentence as imposed by

the trial court is maintained.

17. In the result we make the following order:

(i) The conviction and sentence under Section 363,

366, and Section 4 of POCSO Act is confirmed.

The conviction under Section 506 IPC is set

aside.

(ii) The conviction order made by the trial court and

confirmed by the High Court under Section 376

D IPC is modified. The appellant is instead

convicted under Section 376 IPC and is

sentenced, for the period undergone. The fine

and default sentence as imposed by the trial

court shall remain unaltered.

(iii) Since the custody certificate dated 20.09.2013

indicates that the appellant has undergone

sentence for more than 8 years, the appellant is

ordered to be released on payment of fine as all

the sentences have run concurrently and if he is

not required to be detained in any other case.

(iv) The appeal is accordingly allowed in part.

(v) Pending application, if any, shall stand disposed

of.

……………………….J.

(M.R. SHAH)

……………………….J.

(A.S. BOPANNA)

New Delhi,

October 08, 2021

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Thursday, October 21, 2021

Wednesday, October 13, 2021

whether in an appeal/application filed under Section 34 of the Arbitration & Conciliation Act, 1996 read with Section 19 of the MSME Act, 2006, the appellate court would have any discretion to deviate from deposit of 75% of the awarded amount as a pre-deposit?