Penal Code, 1860 – s. 302 and s. 307 – Prosecution case was that victim went to sleep in chaubara of the house which was not having any shutter, whereas PW-5 (first informant) along with the other family members slept in a room on the ground floor – PW-5 heard a knock on the door in which she was sleeping – She opened door and she saw the accused appellant standing there armed with a knife – Appellant inflicted an injury with the weapon on the abdomen of PW-5 – Another assailant who was accompanying appellant caught hold of her arm – On raising alarm, both assailants ran away – Then, PW-5 went upstairs and found her husband-victim severly injured – Victim died on the way to hospital – Trial Court framed charges against the appellant – Another accused KS was also summoned to face trial – The Trial Court acquitted KS, however, the appellant was convicted u/ss. 302 and 307 IPC – High Court dismissed the appeal against the conviction – Correctness:

* Author

[2024] 4 S.C.R. 707 : 2024 INSC 312

Kirpal Singh

v.

State of Punjab

(Criminal Appeal No. 1052 of 2009)

18 April 2024

[B.R. Gavai and Sandeep Mehta,* JJ.]

Issue for Consideration

The appellant was convicted u/s. 302, s.307 IPC and sentenced to

undergo life imprisonment and rigorous imprisonment for 5 years

respectively. Both sentences were to run concurrently. An appeal

preferred by the appellant before the High Court was dismissed.

Headnotes

Penal Code, 1860 – s. 302 and s. 307 – Prosecution case was

that victim went to sleep in chaubara of the house which

was not having any shutter, whereas PW-5 (first informant)

along with the other family members slept in a room on the

ground floor – PW-5 heard a knock on the door in which she

was sleeping – She opened door and she saw the accused

appellant standing there armed with a knife – Appellant inflicted

an injury with the weapon on the abdomen of PW-5 – Another

assailant who was accompanying appellant caught hold of

her arm – On raising alarm, both assailants ran away – Then,

PW-5 went upstairs and found her husband-victim severly

injured – Victim died on the way to hospital – Trial Court

framed charges against the appellant – Another accused KS

was also summoned to face trial – The Trial Court acquitted

KS, however, the appellant was convicted u/ss. 302 and 307

IPC – High Court dismissed the appeal against the conviction

– Correctness:

Held: The motive for the incident, as projected in the evidence of

PW-5, was accused bearing jealousy on account of flourishing

business of victim-deceased – Other than this bald averment,

there is no corroborative material to lend credence to this theory

– If the prosecution case is to be accepted, the moment victimdeceased had been belabourned, the purpose of the accused

was served and then there was no reason why accused would

expose himself to the other family members – Furthermore, as per 

708 [2024] 4 S.C.R.

Digital Supreme Court Reports

the prosecution case, two accused were involved in the incident

– And when they have gone down to eliminate the other family

members, there was no reason for the person accompanying the

accused-appellant to be unarmed – This creates a doubt on the

truthfulness of the prosecution story – Also, PW-5 had alleged

that the investigation being conducted was partisan and tained,

pursuant to that she had filed petitions (including to chief minister

and the High Court) – However, in her cross-examination she

virtually resiled from the averments made therein – Neither in the

FIR nor in the application (Exhibit-DA) signed by the first informantPW-5 and addressed to the Chief Minister, the name of the second

accused KS is mentioned as one of the assailants – Both accused

persons are relatives of deceased and PW-5 – In that event, if

the first informant had identified the offenders at the time of the

incident, there was no reason as to why she would leave out the

name of KS while giving the statement to the police officer, who

recorded FIR (Exhibit PG/2) – This creates a doubt on credibility

of PW-5 – Further, a serious doubt is created on the credibility

of the deposition made by the first informant-PW-5, that she and

her husband were being taken to two hospitals – This completely

destroys her credibility as there cannot be two views on the aspect

that if a case of homicidal death is reported at a Government

hospital the doctors would immediately inform the police and there

is no chance that the dead body would be allowed to be carried

away by the family members – Further, many contradictions have

been elicited in the cross examination of PW-6-son of deceased

with reference to his previous versions, as recorded by different

investigating officers – Both the witnesses PW-5 and PW-6 are

wholly unreliable – That apart, two investigating officers who

conducted thorough investigation and found the entire case set

up by the first informant-PW-5 to be false – Consequently, the

appellant deserves to be acquitted by giving him the benefit of

doubt – Therefore, the judgment of the trial Court and the High

Court are set aside. [Paras 16, 18, 21, 25, 27, 28, 32]

Case Law Cited

Vadivelu Thevar v. State of Madras [1957] 1 SCR 981 :

AIR 1957 SC 614 – relied on.

List of Acts

Penal Code, 1860; Code of Criminal Procedure, 1973.

[2024] 4 S.C.R. 709

Kirpal Singh v. State of Punjab

List of Keywords

Murder; Attempt to murder; Motive; Corroborative material; Witness;

Wholly unreliable witness; Deposition; Credibility of deposition;

Contradictions in cross-examination; Inherent improbabilities;

Benefit of doubt; Falsus in uno, falsus in omnibus.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1052

of 2009

From the Judgment and Order dated 28.02.2008 of the High Court of

Punjab & Haryana at Chandigarh in CRLA No. 662 of 2003

Appearances for Parties

Vineet Jhanji, Ranbir Singh Kundu, Imran Moulaey, Ravinder Pal

Singh, Ms. Jyoti Mendiratta, Advs. for the Appellant.

Siddhant Sharma, Adv. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Mehta, J.

1. The instant appeal has been preferred on behalf of the appellant

for assailing the judgment dated 28th February, 2008 passed by

the High Court of Punjab and Haryana at Chandigarh in Criminal

Appeal No. 662-DB of 2003, whereby the appeal preferred by the

appellant was dismissed, thereby affirming the judgment and order

dated 26th July, 2003 rendered by the learned Additional Sessions

Judge (Adhoc), Hoshiarpur, vide which the appellant was convicted

and sentenced as below:-

(i) Under Section 302 of the Indian Penal Code (hereinafter being

referred to as ‘IPC’) - Imprisonment for life and to pay a fine

of Rs.2,000/-, in default of payment of fine, to undergo further

rigorous imprisonment for a period of one month.

(ii) Under Section 307 IPC – Rigorous imprisonment for a period

of five years and a fine of Rs.1,000/-, in default of payment of

fine, to undergo further rigorous imprisonment for a period of

15 days.

Both the sentences were ordered to run concurrently.

710 [2024] 4 S.C.R.

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Brief facts: -

2. Sharan Kaur, the first informant(PW-5), wife of Balwinder Singh

(deceased) used to reside along with her family members in the

house which was situated on the backside of the grocery and

halwai shops owned by her husband Balwinder Singh (deceased)

at bus stop, Khudda. In the intervening night of 12th/13th November,

1997, Balwinder Singh (deceased) went to sleep in chaubara of

the house which was not having any shutter, whereas Sharan

Kaur (PW-5) along with the other family members slept in a room

on the ground floor. It is alleged that Sharan Kaur (PW-5) heard a

knock on the door of the room in which she was sleeping at about

2.30 a.m. She thought that it was her husband who had knocked

the door and thus she opened the door. In the illumination of light

placed in the courtyard, she saw the accused appellant-Kirpal Singh

standing there armed with a knife like chura. The appellant inflicted

an injury with the weapon on the abdomen of Sharan Kaur (PW-5).

Another assailant who was accompanying appellant Kirpal Singh

caught hold of her arm. She raised an alarm shouting ‘killed killed’

(‘maar ditta maar ditta’), on which her sons Goldy and Sonu woke

up. None of these three persons could identify the other assailant.

Both the assailants fled away by opening the main gate, in between

the two shops. Sharan Kaur (PW-5) went upstairs to have a look

at her husband and found him lying severely injured on the cot

with blood oozing out of his mouth and head. Blood pooled on the

ground below. He was unable to speak. She called her two sons and

sent them to call her brother-in-law Gurnam Singh with a vehicle.

Sharan Kaur (PW-5) and Balwinder Singh were taken to the Civil

Hospital, Tanda but on the way to the hospital, Balwinder Singh

expired. First aid was provided to Sharan Kaur (PW-5), thereafter,

she as well as the dead body of Balwinder Singh (deceased) was

brought back to their home in the same vehicle and by that time

the police had arrived. The prosecution alleges that the motive

behind the occurrence was that the appellant and his associate

were bearing jealousy on account of the roaring business being

done at the halwai shop of Balwinder Singh (deceased), which

was doing much better as compared to the halwai shop run by the

accused appellant. Swaran Dass(PW-9), SHO, Police Station Dasuya

recorded the statement of Sharan Kaur (PW-5) wherein, the above

allegations were incorporated and based thereupon, FIR No.126 of 

[2024] 4 S.C.R. 711

Kirpal Singh v. State of Punjab

1997 dated 13th November, 1997 came to be registered at Police

Station, Dasuya, District Hoshiarpur for the offences punishable

under Sections 302, 307 IPC read with Section 34 of IPC. The said

FIR was marked as Exhibit-PG/2, during the course of trial. The

Investigating Officer prepared inquest report on the dead body of

Balwinder Singh(deceased) and forwarded the dead body to the

Civil Hospital, Dasuya for post mortem examination; rough site plan

of the crime scene was prepared; bloodstained earth was collected

from the spot and was sealed into a parcel. A spade lying at the

crime scene was seized, the blade whereof was bloodstained. A

ladder was also seized from the crime scene.

3. The dead body of Balwinder Singh was subjected to autopsy at

the hands of Dr. Naresh Kumar (PW-4), Medical Officer, Civil

Hospital, Dasuya on 13th November, 1997, who examined the

same and took note of the following injuries on the body of the

deceased:-

"i. Lacerated wound 1.5 cm bone deep on left side of

forehead. Placed transversely 2 cm above and lateral

to outer end of left eyebrow medical to this wound

these was red coloured contusion with depressed

surface 3 x 4 cm in size 1.5 cm above and parallel

to left eye brow.

On dissection there was subaponeurotic hematoma

in both front regions. The frontal bone was found

fractured into multiple pieces were impacted into

the underlying brain tissue, semi clotted blood was

present between membrane between and brain tissue

and within the brain tissue.

ii. Lacerated wound 1.5 cm x 1 cm bone deep on left

side of head posterior to left pinna. It was transversally

placed 2.5 cm below the upper end of left pinna.

iii. Lacerated wound 2 cm x 1 cm on upper part of

left pinna splitting the pinna into two parts. It was

transversally placed in lines with injury No.2.”

4. The injuries were stated to be caused by blunt weapon and the cause

of death was opined to be the head injury, which was sufficient to

cause death in the ordinary course of nature. 

712 [2024] 4 S.C.R.

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5. Dr. Didar Singh (PW-1), Medical Officer, Civil Hospital, Dasuya

conducted medical examination of Sharan Kaur (PW-5), the first

informant, and took note of an incised wound admeasuring 2½ x ½

cm elipitcal in shape present on the left side of the abdomen 2 cms

above the umblicus and 6 cms lateral to the mid line. However, the

wound was not probed for finding of the depth and the case was

referred to the Surgical Specialist for opinion and treatment.

6. The case took a different turn, when the first informant Sharan Kaur

(PW-5) started raising allegations against the Investigating Officer

of conducting partisan and tainted investigation in order to favour

the police.

7. Sharan Kaur (PW-5) filed two petitions in the High Court of Punjab

and Haryana seeking transfer of investigation to the CBI or some

other independent agency. In both these petitions, her allegation was

that the second accused named Kulwinder Singh had been left out

of the case for oblique reasons.

8. Be that as it may, two different police officials, conducted the

investigation and filed closure reports alleging that the first informantSharan Kaur(PW-5) had falsely implicated the accused. However, the

Magistrate did not agree with the opinion. The accused appellantKirpal Singh @ Lucky was arrested on 21st November, 1997 and

charge sheet was filed against him for the offences punishable under

Section 302 IPC and Section 307 IPC. Since both the offences were

exclusively triable by the Court of Sessions, the case was committed

to the Court of Additional Sessions Judge(Adhoc), Hoshiarpur

(hereinafter being referred to as ‘trial Court’) for trial.

9. Learned trial Court framed charges against the accused appellant,

who abjured his guilt and claimed trial. An application came to be

filed by the prosecution under Section 319 of the Code of Criminal

Procedure, 1973 (hereinafter being referred to as ‘CrPC’) which was

allowed and the accused Kulwinder Singh was summoned to face

trial along with the charge sheeted accused, i.e., the appellant herein.

Fresh charge for the offences punishable under Sections 302, 307

read with Section 34 IPC were framed against both the accused

to which they pleaded not guilty and claimed trial. The prosecution

examined ten witnesses to support its case.

10. The incriminating circumstances appearing in the prosecution

evidence were put to the accused while recording their statements 

[2024] 4 S.C.R. 713

Kirpal Singh v. State of Punjab

under Section 313 CrPC. The accused denied those allegations and

claimed to be innocent. Total four (04) witnesses were examined

in defence. After hearing the arguments advanced by the learned

Additional Public Prosecutor and the defence counsel, and upon

appreciating the evidence available on record, the learned trial Court

vide judgment dated 26th July, 2003 proceeded to convict the accused

appellant-Kirpal Singh and sentenced him as noted hereinabove.

However, by the very same judgment, the co-accused Kulwinder

Singh was acquitted of the charges. The accused appellant-Kirpal

Singh preferred Criminal Appeal No.662-DB of 2003 challenging

his conviction and sentence, whereas the State preferred Criminal

Appeal No.535-DBA of 2004 and the complainant preferred Criminal

Revision No.2259-DB of 2003 challenging the acquittal of Kulwinder

Singh before the High Court of Punjab and Haryana.

11. The learned Division Bench of the High Court of Punjab and Haryana

proceeded to dismiss both the appeals, one filed by the State, and

the other by the accused-appellant as well as the revision filed by

the complainant by a common judgment and order dated 28.02.2008,

which is assailed in this appeal filed at the instance of the accused

appellant-Kirpal Singh.

Submissions on behalf of the appellant: -

12. Shri Vineet Jhanji, learned counsel appearing for the accused

appellant vehemently contended that the findings recorded in the

impugned judgment are perverse and self-contradictory and hence,

the same are liable to be set aside. He advanced the following

pertinent submissions seeking acquittal of accused appellant:

(i) The evidence of Sharan Kaur (PW-5), the first informant, being

the wife of the deceased and Daljit Singh @ Goldy(PW-6), son

of the deceased, is highly self-contradictory, vacillating and

unconvincing.

(ii) That the prosecution witnesses have tried to improve upon the

story put forth in the FIR at every stage of the proceedings and

hence, their evidence deserves to be discarded. The trial Court

as well as the High Court have found that the witnesses, Sharan

Kaur (PW-5) and Daljit Singh @ Goldy(PW-6) are not wholly

reliable witnesses and their allegations qua the co-accusedKulwinder Singh have been found to be unacceptable, thereby 

714 [2024] 4 S.C.R.

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recording his acquittal. Thus, the accused-appellant (Kirpal

Singh) also deserves the same treatment.

(iii) That the motive attributed to the accused appellant by Sharan

Kaur (PW-5) is absolutely cooked up and unbelievable. Her

bald allegation that the accused bore jealousy on account of

the booming halwai business of Balwinder Singh (deceased),

is just a figment of imagination and has not been corroborated

by any independent source. Rather the prosecution did not

even lead any evidence to show that the accused appellant is

involved in halwai business.

(iv) The accused appellant was admittedly closely related to the

deceased, but this fact was concealed in the FIR as well as in

the testimony of the material prosecution witnesses.

(v) That the story put forth by Sharan Kaur (PW-5) in her evidence

is totally unworthy of reliance because even as per her own

assertion, the accused appellant was bearing a grudge against

the deceased. In that event, once the accused had succeeded in

belaboring and killing Balwinder Singh (deceased), by entering

into the chaubara in a clandestine manner using a ladder, there

was no reason as to why the accused would come down the

stairs, knock the door and alarm the other family members so

as to expose himself.

(vi) That the conduct of the first informant-Sharan Kaur(PW-5)

and her family members in bringing back body of Balwinder

Singh to their house even after the doctor at Civil Hospital,

Tanda had declared him to be dead, brings the credibility of

these witnesses under a grave shadow of doubt. He urged that

admittedly, while coming back from Tanda, the Police Station

at Dasuya falls on the way and thus, if at all, there was any

truth in this version, the witnesses would have stopped at the

police station to report the matter. Furthermore, the doctor at

Civil Hospital would definitely have taken steps to report the

matter to the police since it was a clear case of homicide.

(vii) That the defence witnesses have categorically stated that

after thorough investigation, the allegations set out by the

first informant-Sharan Kaur(PW-5) were found to be false and

hence, closure reports were submitted by the police in the

concerned Court. 

[2024] 4 S.C.R. 715

Kirpal Singh v. State of Punjab

(viii) That it is an admitted case as elicited in the testimony of Daljit

Singh @ Goldy (PW-6), son of Balwinder Singh(deceased)

and first informant-Sharan Kaur(PW-5), that four servants were

sleeping with Balwinder Singh(deceased) in the chaubara of

the house but they were not examined in evidence. Likewise,

Gurmit Singh, the other son of deceased and the first informant,

was also not examined by the prosecution for the reasons best

known to them and hence, it is a fit case warranting/drawing

of adverse inference against the prosecution.

On these grounds, learned counsel implored the Court to accept the

appeal and acquit the accused appellant.

Submissions on behalf of the State: -

13. Per contra, Mr. Siddhant Sharma, learned counsel appearing for the

State, vehemently and fervently opposed the submissions advanced

by the counsel for the appellant. He conceded that the story of the

prosecution qua involvement of accused-Kulwinder Singh has not

found favour with the trial Court and the High Court but as per him,

that by itself cannot be a valid reason so as to discard the entire

prosecution case, qua the accused appellant as well who was named

in the FIR and in the testimony of the material prosecution witness.

He fervently contended that trivial contradictions in the evidence

of the prosecution witnesses lend assurance that they are truthful

witnesses and are not created witnesses. He submitted that the

principle ‘falsus in uno, falsus in omnibus’ does not apply to the

Indian criminal jurisprudence system and thus, merely because one

of the two accused named by the prosecution witnesses has been

acquitted by the trial Court, the accused appellant cannot get the

advantage thereof.

14. He further submitted that the trial Court as well as the High Court,

after appreciation and re-appreciation of the evidence have separated

the chaff from the grain and have held the accused appellant guilty

of the charges and thus, this Court should be loath to interfere in

such concurrent findings of facts recorded by the trial Court and the

High Court. On these submissions, learned counsel appearing for the

State, urged that the appeal lacks merit and is fit to be dismissed.

15. We have given our thoughtful consideration to the submissions

advanced at the bar and have carefully perused the judgments 

716 [2024] 4 S.C.R.

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rendered by the High Court and the trial Court and analysed the

evidence available on record.

Consideration of evidence and submissions: -

16. The prosecution case as unfolded, in the evidence of the first

informant, Sharan Kaur (PW-5) (the star prosecution witness who

herself received an injury in the same incident), is that she along

with her two sons Daljit Singh @ Goldy (PW-6) and Gurmit Singh

was sleeping in the room on the ground floor of the house, whereas,

her husband[Balwinder Singh(deceased)] was sleeping in chaubara,

which has no gate. The prosecution tried to canvass that the accused

put up a ladder on the wall of the house, climbed into the chaubara

with the aid thereof and hit Balwinder Singh(deceased) with a spade,

which resulted into grave injuries. The motive for the incident, as

is projected in the evidence of Sharan Kaur (PW.5), was that the

accused was bearing a jealousy on account of flourishing halwai

business of her husband whereas, the business of the accused

was not thriving. However, we may state that other than this bald

averment made by Sharan Kaur (PW-5) attributing motive for the

incident to the accused, no corroborative material was collected by

the Investigating Officers to lend credence to this theory of motive.

The statement of Sharan Kaur (PW-5) on this aspect is also very

vague. There is nothing in her deposition, which can satisfy the

Court that merely on account of this so called jealousy, the accused

would go to the painstaking length of putting up a ladder against

the wall of the house, where Balwinder Singh (deceased) used to

reside with his family and then climb up and murder him, that too in

the presence of his family members.

17. If the prosecution case is to be accepted, it is apparent that the

accused had painstakingly, planned out the murder of Balwinder

Singh (deceased), inasmuch as they put up a ladder against the outer

wall of the house, climbed into the house by using the said ladder

and attacked the deceased by spade. Thus, the moment Balwinder

Singh (deceased) had been belaboured, the purpose of the accused

was served and hence, there was no rhyme or reason as to why the

accused would take the risk of being exposed to the other family

members. This precisely is the story portrayed in the evidence of

Sharan Kaur (PW-5) who stated that while she was sleeping in the

room on the ground floor with her two sons, she heard some noise 

[2024] 4 S.C.R. 717

Kirpal Singh v. State of Punjab

and opened the door of the flight of stairs connecting the chaubara

and saw the accused appellant-Kirpal Singh and his companion

standing therein. The accused appellant-Kirpal Singh who was

armed with a knife, stabbed her on the abdomen whereas the other

accused appellant caught her by the arm. As per the prosecution, the

accused appellant had assaulted Balwinder Singh (deceased) with

a spade which was abandoned at the spot and then the accused

came down with a knife.

18. The story so set up by the prosecution, does not inspire confidence

for more than one reasons. As discussed above, once the accused

had achieved the objective of eliminating Balwinder Singh(deceased)

without being discovered, they had all the opportunity in the world to

escape from the spot by using the very same ladder, which had been

used to climb up the chaubara. Thus, there was no reason for the

accused to risk discovery by coming down and alarming the family

members. Furthermore, as per the prosecution case, two accused

were involved in the incident. If at all the prosecution case is to be

believed, the accused after killing Balwinder Singh(deceased), must

have gone down to eliminate the other family members and in that

background, there was no reason as to why the person accompanying

the accused appellant was unarmed. This again creates a doubt

on the truthfulness of the prosecution story. The first informantSharan Kaur (PW-5) made a big issue regarding the conduct of the

investigating agency alleging that the investigation being conducted

was partisan and tainted. She filed petitions before different forums

including the Chief Minister and the High Court. She was confronted

with these applications extensively in her cross examination and she

virtually resiled from the averments made therein. For illustration, we

would like to reproduce some excerpts from the cross examination

of Sharan Kaur (PW-5):-

“...We approached the Hon’ble High Court as my statement

was not being correctly recorded by the Police. On the

directions of the Hon’ble High Court my statement was

recorded by the Crime Branch.”

xxx xxx

“...I have seen the carbon copy of the application Addressed

to CM Punjab Chandigarh. It bears my signature and is

Ex.DB. My father used to get my signature on the Blank 

718 [2024] 4 S.C.R.

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papers so I can not say whether the application of Ex.DA

was moved by me on 15.12.97 after the completion of

investigation by DSP Ajaib Singh. The witness is not ready

to answer the question whether the application EX.DA

bear the name of accused Kulwinder Singh @ Neeta. In

the application the name of Kulwinder Singh @ Neeta is

not written but some unidentified person has been written.

The witness has explained that she used to disclose the

name of Kulwinder Singh @ Neeta but the police was not

recording his name and the application Ex.DA might have

been drafted by his counsel at his own. The witness is not

ready to answer the question that the copy of the FIR was

attached with the writ petition/Crl. Misc application or that

the name of Kulwinder Singh @ Neeta was not mentioned

in the said petition or that in the petition also the name

of unidentified person was mentioned. The witness is

also not ready to answer the question whether there was

some ommision in the petition and that an application was

moved for the correction of those ommissions. The witness

is also not ready to answer the question that by way of

amendment the name of Kulwinder Singh @ Neeta was

not incorporated in the amended application. The witness

is not ready to answer the question whether the petition

was withdrawn on 6.8.98.”

19. In her examination in chief, the first informant-Sharan Kaur(PW-5)

categorically stated that her statement was recorded at the Civil

Hospital, Dasuya on 13th November, 1997 at about 7:30 a.m. It was

read over and explained to her, and she signed it admitting it to be

correct.

20. If that be so, the subsequent conduct of Sharan Kaur (PW-5) in

raising a hue and cry that investigation being conducted was tainted

and the police had intentionally favoured the co-accused Kulwinder

Singh by leaving out his name from the array of offenders creates

a great doubt on her credibility.

21. Neither in the FIR (Exhibit-PG/2) nor in the application (Exhibit-DA)

signed by the first informant-Sharan Kaur(PW-5) and addressed

to the Chief Minister, Punjab, the name of the second accused

Kulwinder Singh is mentioned as one of the assailants. There is no 

[2024] 4 S.C.R. 719

Kirpal Singh v. State of Punjab

dispute that the acquitted accused Kulwinder Singh and appellant

Kirpal Singh, are closely related to the family of the deceased and

the first informant. In that event, if the first informant had identified

the offenders at the time of the incident, there was no reason as to

why she would leave out the name of Kulwinder Singh while giving

the statement to the police officer, who recorded FIR (Exhibit-PG/2).

The witness was extensively confronted with the other applications/

petitions filed by her questioning the bonafides of investigation being

carried out by the Investigating Agencies being Exhibit-DB, ExhibitDG, etc., and she refused to stand by the versions set out in these

applications/petitions filed by herself. Not only this, a statement

(Exhibit-DL) of the first informant was recorded by DSP, Rajender

Singh, wherein it is stated that some unknown person entered into

their house and caused injuries to the witness and her husband, who

expired in the incident. Though, the first informant denied having

given this statement but this fact definitely creates a doubt on the

truthfulness of her story. A serious doubt is created on the credibility

of the deposition made by the first informant, when we consider the

fact that she claimed in her examination in chief that a van was

brought by her son wherein, she and her husband were taken to

the Civil Hospital, Tanda, where the medical officers opined that her

husband had expired and she was medically examined. However,

they did not believe in this opinion and took the victim to Bhogpur

where again the doctors reiterated that her husband had expired.

Only after this confirmation, the dead body of Balwinder Singh was

brought back to the house where police was already present. This

version, as set out in the testimony of the first informant, Sharan

Kaur(PW-5), completely destroys her credibility. There cannot be two

views on the aspect that if a case of homicidal death is reported at

a Government hospital the doctors would immediately inform the

police and there is no chance that the dead body would be allowed

to be carried away by the family members.

22. It may be stated that the medical records of the Civil Hospitals at

Tanda and Bhogpur were not collected by the investigating agency

nor were the same brought on record by the prosecution in its

evidence. Dr. Didar Singh (PW-1) Medical Officer, Civil Hospital,

Dasuya examined the first informant-Sharan Kaur (PW-5) on 13th

January, 1997 at about 07:05 a.m. In his cross examination, the

doctor (PW-1) made the following admissions:-

720 [2024] 4 S.C.R.

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“...As per the record brought by me she has not given any

history of assault. It is correct that as stated by Sharan

Kaur that she has not been examined medico legally by

any other doctor. No opinion regarding the weapon used

was sought from me till today nor has any surgical opinion

been received by me till today. As per my record she

was admitted in hospital immediately after the medical

examination.”

23. This version of Dr. Didar Singh, (PW-1) completely destroys the story

put forth by Sharan Kaur (PW-5) that she and her family members

had taken the victim to the Government hospitals referred to above

or that the body was brought back to their home after such medical

examination was conducted. Apparently, the dead body was just

lying in the house till the police arrived who took both the victims

to the hospital.

24. This fact is firmly cemented when we consider the deposition of Dr.

Didar Singh (PW-1), who has stated that Sharan Kaur (PW-5) told him

that she had not been examined medico legally by any other doctor

and that she had been admitted in the hospital immediately after

the medical examination. These inherent infirmities in the testimony

of Sharan Kaur (PW-5) completely destroys her evidentiary worth

and we have no hesitation in holding that she is a totally unreliable

partisan witness.

25. Daljit Singh (PW-6), being the son of the deceased Balwinder Singh

and the first informant-Sharan Kaur (PW-5), stated that he woke up

on hearing the cries of his mother and saw that Kulwinder Singh

had caught hold of his mother from her arm and both the assailants

ran away on seeing him. He and his elder brother Gurmit Singh

tried to pursue the offenders. Thereafter they climbed up the stairs

and saw that their father was lying in a pool of blood. This witness

(PW-6) also stated that he along with his mother took his father in

a van to the Civil Hospital, Tanda where he was declared dead,

however they did not believe the opinion so given and hence, they

proceeded to Bhogpur and consulted Dr. Arora, who also confirmed

the fact regarding the death of Balwinder Singh. Then they proceeded

back to their house, where the police had reached before their

arrival. This witness (PW-6) was also confronted with his previous

statement (Exhibit-DB) wherein, the name of Kulwinder Singh was 

[2024] 4 S.C.R. 721

Kirpal Singh v. State of Punjab

not mentioned. Many contradictions have been elicited in the cross

examination of this witness(PW-6) with reference to his previous

versions, as recorded by different investigating officers. In his cross

examination, the witness(PW-6) even admitted that he did not

remember the name of her mother’s brother, who met them on that

day. He further stated that he and his mother took Balwinder Singh

(deceased) to Civil Hospital, Dasuya. The Police Station, Dasuya

falls in the way to the Civil Hospital, Dasuya but they did not go to

the police station for lodging the report. This fact again indicates

that the conduct of PW-5 and PW-6 was totally unnatural. Gurmeet

Singh, elder brother of Daljit Singh(PW-6), was not examined by the

prosecution. We find that Daljit Singh (PW-6) did not even utter a

word that appellant was having a weapon with him when he saw him

fleeing away from the crime scene. These inherent improbabilities

and loopholes in the evidence completely destroy the fabric of the

prosecution case which is full of holes and holes which are impossible

to be stitched together.

26. This Court in the celebrated case of Vadivelu Thevar v. State of

Madras1

, has observed as follows:-

“11.…Hence, in our opinion, it is a sound and wellestablished rule of law that the court is concerned with the

quality and not with the quantity of the evidence necessary

for, proving or disproving a fact. Generally speaking, oral

testimony in this context may be classified into three

categories, namely:

(1) wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

12. In the first category of proof, the court should have

no difficulty in coming to its conclusion either way - it

may convict or may acquit on the testimony of a single

witness, if it is found to be above reproach or suspicion

of interestedness, incompetence or subornation. In the

second category, the court, equally has no difficulty in

1 [1957] 1 SCR 981 : AIR 1957 SC 614

722 [2024] 4 S.C.R.

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coming to its conclusion. It is in the third category of cases,

that the court has to be circumspect and has to look for

corroboration in material particulars by reliable testimony,

direct or circumstantial...”.

27. On going through the evidence of Sharan Kaur (PW-5) and Daljit

Singh (PW-6), with reference to other evidence available on record,

we are of the firm opinion that both these witnesses fall in the second

category, i.e., wholly unreliable. No other tangible evidence was led

by the prosecution to connect the accused appellant with the crime.

28. As we have noted above, the prosecution’s story of motive is very

weak and rather far fetched so as to place implicit reliance thereupon.

Two investigating officers conducted thorough investigation and found

the entire case set up by the first informant-Sharan Kaur(PW-5) to

be false. The conduct of the first informant is unworthy of reliance,

when we consider the fact that she tried to implicate Kulwinder Singh

by filing various petitions while the investigation was still ongoing

and even in her testimony during the trial. However, even in the FIR

(Exhibit-PG/2), which was admittedly registered on the basis of her

own statement, the first informant-Sharan Kaur(PW-5) did not name

the said Kulwinder Singh, as co-assailant with the accused appellant

herein. Even in the petition i.e. Crl. Misc. Petition No. 2053-M-1998

filed before the High Court of Punjab and Haryana, the name of the

said Kulwinder Singh was not mentioned.

29. The spade allegedly used to assault the deceased was found lying

at the crime scene. On going through the entire set of prosecution

witnesses, we find that no weapon of crime was recovered at the

instance of the accused appellant and thus, there is no corroborative

evidence so as to lend credence to the wavering and unreliable

testimony of Sharan Kaur (PW-5) and Daljit Singh (PW-6).

30. Lajpal Singh(DW-3), DIG (Operation), Punjab was examined by the

defence, who in his cross examination stated that in his investigation,

he found the accused to be innocent.

31. Having given our thoughtful consideration to the entirety of the material

available on record, we are of the firm view that evidence of Sharan

Kaur (PW-5) and Daljit Singh (PW-6) is wholly unreliable, does not

inspire confidence in the Court so as to affirm the conviction of the

appellant. It may be reiterated that no corroborative evidence was 

[2024] 4 S.C.R. 723

Kirpal Singh v. State of Punjab

led by the prosecution so as to lend credence to the testimony of

these two witnesses.

32. Consequently, the appellant deserves to be acquitted by giving him

the benefit of doubt. Resultantly, the judgments of the trial Court

and the High Court dated 26th July, 2003 and 28th February, 2008

respectively are hereby quashed and set aside. The appellant is

acquitted of the charges. The sentence awarded to the appellant

was directed to be suspended by this Court on 12th August, 2011,

during the pendency of this appeal and he is on bail. He need not

surrender and the bail bonds are discharged.

33. The appeal is accordingly, allowed.

34. Pending application(s), if any, shall stand disposed of.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeal allowed.

Code of Civil Procedure, 1908 – s. 47 – Questions to be determined by the Court executing decree – Objections u/s. 47 – Property originally owned by defendant No.1 – Execution of agreement to sell the property by the brother of defendant No.1- defendant No.2 and also the power of attorney of defendant No.1, for himself and for the principal defendant No.1 with the plaintiff – Pursuant thereto, the vendor not executing the sale deed – Suit for specific performance by the plaintiff against defendant no.1 and no.2 – During pendency, the parties entered into a compromise and the suit was decreed – Execution petition by the plaintiff – Objections by the defendant no. 1 – Objections dismissed and in the meantime the defendant no. 1 died – Thereafter, order dismissing the objections challenged by the son of defendant no. 2, and legal heir of defendant No. 1 claiming rights under a sale executed by defendant no 1, which was dismissed – Special Leave Petition thereagainst also dismissed – However, new round of objections u/s. 47 initiated by respondent no. 1-wife of defendant no. 2 – Dismissed by the executing court – In revision petition, the High Court set aside the order passed by the Executing Court and held that the decree passed by the trial court was inexecutable and a nullity – Correctness:

* Author

[2024] 4 S.C.R. 694 : 2024 INSC 329

Rehan Ahmed (D) Thr. Lrs.

v.

Akhtar Un Nisa (D) Thr. Lrs.

(Civil Appeal No. 5218 of 2024)

22 April 2024

[Vikram Nath* and Satish Chandra Sharma, JJ.]

Issue for Consideration

Matter pertains to the correctness of the order passed by the High

Court allowing the objections u/s. 47 CPC filed by the respondent

no. 1, setting aside the order passed by the Executing Court and

holding that the decree passed by the trial court in the suit was

inexecutable and a nullity.

Headnotes

Code of Civil Procedure, 1908 – s. 47 – Questions to be

determined by the Court executing decree – Objections u/s. 47

– Property originally owned by defendant No.1 – Execution of

agreement to sell the property by the brother of defendant No.1-

defendant No.2 and also the power of attorney of defendant

No.1, for himself and for the principal defendant No.1 with the

plaintiff – Pursuant thereto, the vendor not executing the sale

deed – Suit for specific performance by the plaintiff against

defendant no.1 and no.2 – During pendency, the parties entered

into a compromise and the suit was decreed – Execution

petition by the plaintiff – Objections by the defendant no. 1 –

Objections dismissed and in the meantime the defendant no. 1

died – Thereafter, order dismissing the objections challenged

by the son of defendant no. 2, and legal heir of defendant No.

1 claiming rights under a sale executed by defendant no 1,

which was dismissed – Special Leave Petition thereagainst also

dismissed – However, new round of objections u/s. 47 initiated

by respondent no. 1-wife of defendant no. 2 – Dismissed by

the executing court – In revision petition, the High Court set

aside the order passed by the Executing Court and held that

the decree passed by the trial court was inexecutable and a

nullity – Correctness:

Held: High Court erred in setting aside the Executing Court’s

order and in declaring the trial court’s decree void – High Court’s 

[2024] 4 S.C.R. 695

Rehan Ahmed (D) Thr. Lrs. v. Akhtar Un Nisa (D) Thr. Lrs.

reasoning rests on the erroneous assumption that the property

was jointly owned by defendants No. 1 and No. 2, and that the

absence of defendant No. 2’s signature on the compromise

invalidated the decree – However, defendant No. 2 consistently

acknowledged that he had no ownership rights over the property –

Compromise, signed by defendant No. 1 and the plaintiff and later

verified by defendant No. 2 through an application, substantiates

that defendant No. 1 was the sole owner – These facts were

upheld by the High Court and this Court in previous proceedings

– Defendant no. 2 had limited rights of being in possession of the

third floor of suit property – Due to the said reasons, the plaintiff

and defendant no. 1 were the only necessary parties needed

for the compromise – High Court also incorrectly held that the

provisions of Ord. XXIII, r. 3 were not adhered to, whereas the trial

court correctly recorded and verified the compromise, fulfilling the

requirements of Ord. XXIII, r. 3 – Recording of the compromise and

the consequent decree, although appearing procedurally delayed,

adhered to the process required under CPC – Furthermore, the

High Court overlooked the fact that legal heir of defendant No

2, had previously objected to the execution proceedings, which

was dismissed – Subsequent appeals before the High Court,

including a Special Leave Petition were also dismissed – Thus,

similar objections by respondent No. 1, in her capacity as one

of the legal heirs of defendant No. 2 would not be maintainable

and would amount to abuse of process of law – Executing Court

rightly rejected the objections u/s. 47 filed by the respondent no.

1 – Impugned judgment of the High Court is set aside and that

of the executing court is restored – Ord. XXIII, r. 3.

List of Acts

Code of Civil Procedure, 1908.

List of Keywords

Objections; Execution of agreement to sell; Sale deed; Suit for

specific performance; Compromise.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5218 of 2024

From the Judgment and Order dated 21.03.2014 of the High Court of

Judicature for Rajasthan at Jaipur in SBCRP No. 95 of 2007

696 [2024] 4 S.C.R.

Digital Supreme Court Reports

Appearances for Parties

Puneet Jain, Ms. Christi Jain, Ms. Pratibha Jain, Advs. for the

Appellants.

Anuj Bhandari, Gaurav Jain, Rajat Gupta, Mrs. Disha Bhandari, Mrs.

Anjali Doshi, Ms. Preetika Dwivedi, Abhisek Mohanty, Advs. for the

Respondents.

Judgment / Order of the Supreme Court

Judgment

Vikram Nath, J.

Leave granted.

2. This appeal, by the Decree Holder, assails the correctness of the

judgment and order dated 21.03.2014 passed by the Rajasthan

High Court, Jaipur Bench at Jaipur in S.B. Civil Revision Petition

No.95/2007, Smt. Akhtar Un Nisa vs. Rehan Ahmed, whereby the

revision filed under Section 115 of the Code of Civil Procedure,

19081

 challenging the order of the Executing Court dated 03.05.2007

rejecting the objections under Section 47 CPC, has been allowed.

The order impugned therein passed by the Executing Court was set

aside and it was held that the decree dated 09.05.1979 passed by

the Trial Court in Suit No.13/72 was inexecutable and a nullity and

accordingly, the objections under Section 47 CPC, were allowed.

3. The factual matrix giving rise to the present appeal is as follows:

3.1 The dispute relates to property being Municipal Nos.52-57,

Maniharon Ka Rasta, Jaipur which was originally owned by

Ghulam Mohiuddin (Defendant No.1). An agreement to Sell

dated 04.10.1967 was executed for sale of the suit property

by Saeeduddin – Defendant No.2 (brother of Defendant No.1)

and also the power of attorney of Defendant No.1, for himself

and for the principal Defendant No.1.

3.2 Pursuant to the aforesaid agreement to sell, as the vendor

was not executing the sale deed, the appellant (plaintiff)

instituted a Civil Suit for specific performance registered as Suit

1 CPC

[2024] 4 S.C.R. 697

Rehan Ahmed (D) Thr. Lrs. v. Akhtar Un Nisa (D) Thr. Lrs.

No.13/72 impleading Ghulam Mohiuddin as Defendant no.1 and

Saeeduddin as Defendant No.2. During the pendency of the

Suit, the parties entered into a compromise dated 11.05.1978

and presented the same before the Trial Court, a copy of which

is filed as Annexure P-4. The terms of the Compromise Deed

are briefly set out below:

“ANNEXURE P-4

IN THE COURT OF ADDL. DIST. JUDGE, CLASS-1,

JAIPUR CITY, JAIPUR

IN THE MATTER OF:

Rehan Ahmad S/o. Sh. Sultan Ahmad, aged about

22 years, Caste Muslim, R/o. Chaukadi Modikhana,

Rasta, Maniharan, H. No. 57, Jaipur-3

... Plaintiff

VERSUS

1. Gulam Mohiuddin Khan, aged about 58 years

S/o. Sh. Badiuddin Khan, Caste Muslimn, R/o.

Mohalla Kamnagran, Badayun (U.P)

2. Saiduddin Khan aged about 52 years S/o. Sh.

Badiuddin Khan, Caste Muslim, R/o. House of

Abdulramham Khan, Gali Aatishbazi Rampur

(U.P)

...Defendants

3. Ahsan Ahmad S/o. Sh. Sultan Ahmad aged

about 32 years, Caste Muslim, R/o. Chaukadi

Modikhana, Rasta Maniharan, H.No. 57, Jaipur-3

...Pro forma Defendant

Suit for specific performance of the contract

regarding house and shop situated at Modikhana,

Rasta Maniharan, Jaipur

000

Most respectfully showeth:

In the above civil suit, a compromise has been

arrived at between the parties on under mentioned 

698 [2024] 4 S.C.R.

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conditions, therefore, the suit may be decreed as per

the compromise.

1. That, plaintiff and defendant No.3 executed

an agreement for sale with the real brother

and general power of attorney of Def. No.2

named Saiduddin Khan on 4.10.1967 in writing

in respect to houses and shops No. 52 to 57,

situated at Circle No.1, Chaukadi Modikhana,

Jaipur, whose full description is given under,

for a sale consideration of Rs.40,000/- in his

own capacity and in the capacity of general

power of attorney of Def. No.1, which was not

accepted earlier by the defendant No.1 and 2,

but now the Def. No.1 admits that agreement

for sale was executed on 4.10.1967 on behalf

of Def. No.2 in his own capacity and on behalf

and consent of Def. No.1.

2. That, Def. No.1 also admits that a sum of Rs.

10,000/- out of entire agreed sale consideration

was received in respect to the disputed property

on 4.10.1967 and a sum of Rs.1,000/- was

received on 1.1.69 and Rs.500/- on 22.1.69

i.e. a total of Rs.11,500/- was received by def.

No. 2 on behalf of Def No. 1 which is liable to

be adjusted from the total consideration of the

property, but the plaintiff and defendant No.3

have alleged to spent Rs.6,500/- in the repairing

of house etc, which amount shall not be adjusted

from the sale consideration because all these

repairing and construction was done after the

above agreement by the plaintiff and Def. No.3.

besides this, the Def. No.1 has received Rs.

1500/- on 17.10.88, and Rs.1000/- on 24.10.77

and Rs.1000/- on 11.11.77 from the plaintiff

towards the cost of this property.

3. That, the Def. No.1 shall get executed and

registered sale-deed of the above described

houses and shops in favor of plaintiff Rehan

Ahmad till 1.7.1978 and shall receive remaining 

[2024] 4 S.C.R. 699

Rehan Ahmed (D) Thr. Lrs. v. Akhtar Un Nisa (D) Thr. Lrs.

sale consideration amount of Rs.25,000/ -. If the

Def. No. 1 fails to execute sale deed in this period

then the plaintiff Rehan Ahmad shall be entitled

to get the sale-deed executed and registered

in his favor through the Court. Entire cost of

registry would be borne equally by the plaintiff

Rehan Ahmad and Def. No.1 Gulam Mohiuddin.

In this respect when the Def. No.1 will ask for

half cost for this from the plaintiff Rehan Ahmed

then the plaintiff Rehan Ahmad shall pay the

same taking receipt from him and because of

this the Def. No.1 shall not be entitled to get the

period agreed for registry extended. The def.

No.1 has received today the half cost of registry

i.e. Rs.1,000/- from the plaintiff Rehan Ahmad.

Complete responsibility to receive N.O.C. shall

be of the Def. No.1.

4. That, Def. No.2 is residing in the third floor of

disputed property which would be got vacated

by defendant No.1 and the physical possession

will be given to the plaintiff Rehan Ahmed prior to

registration, and shall get the rent notes executed

by the tenants who are presently occupying the

disputed property in favour of Rehan Ahmed.

5. That, pro forma defendant No.3 has relinquished

his entire right in respect to the disputed

property in favor of plaintiff Rehan Ahmad on

28.6.1977 through a deed of Relinquishment,

which was. ordered by the court on 28.09.1977.

Therefore, pro forma defendant no.3 shall have

no connection now with this sale.

6. That, the. def. No.2 Saiduddin Khan, himself

has admitted that he did not have right to sell

or to execute agreement for sale of the disputed

property, but now, the defendant No.1, who is the

real owner of this disputed property, admits this

agreement, therefore, now there is no hindrance

in passing decree.

700 [2024] 4 S.C.R.

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7. That, cost of this suit shall be borne by the

parties respectively.

DESCRIPTION OF PROPERTY

Pucca House comprising of three storeys and One

chauk including entire internal houses of three storevs

and five shops outside, out of which two shops are

situated towards south of Sadar Darwaja and three

shops are situated towards north of Sadar Darwaja

along with staircase adjoining the shops towards

the north on which Municipal No, written on the pole

of House is 54/1 and Municipal Number of shops

situated towards south are 52 and 53 and Municipal

Number of shops situated towards north are 55, 56

and 57, Circle 1 and no number is assigned to the

staircase i.e. entire property including house and

shops having municipal number 52 to 57, Circle

No.1 and boundaries of these houses and shops

are as under:

In East: Rasta Maniharan Government.

In west: House of Sindhi in between which

littered Government street is situated.

In north: Temple of Digambar Jain

In south: House and shops of Tirthdas

Shyamiani.

Therefore, it is prayed that compromise be verified and

decree be passed in accordance with the compromise.

Applicants

Rehan Ahmad, Plaintiff

Rehan (in English)

Gulam Mohiuddin Khan, Def. No.1

sd.Ghulam mohiuddin khan (in English)

Both Parties

Jaipur:

Date: 11.5.78”

[2024] 4 S.C.R. 701

Rehan Ahmed (D) Thr. Lrs. v. Akhtar Un Nisa (D) Thr. Lrs.

4. In paragraph No.1 of the Compromise Deed, it is mentioned that

Defendant No.1, although had earlier not accepted the Agreement

to Sell, now admits that the Agreement to Sell dated 04.10.1967

was executed by Saeeduddin–Defendant No.2, not only in his own

capacity but also on behalf of Defendant No.1 as Power of Attorney

holder. Paragraph No.2 mentions the details of the amount received

by the Defendant under the Agreement to Sell as advance until the

time the compromise was arrived at. It would be relevant to mention

that the total sale consideration was Rs.40,000/- out of which as per

paragraph No.2 of the Compromise Deed, Rs.15,000/- had already

been received by the Defendants. Paragraph No.3 mentions that

the Defendant No.1 will get the Sale Deed executed and registered

in favour of the Plaintiff till 01.07.1978 after receiving Rs.25,000/- of

the remaining sale consideration. It, however, mentioned that if the

Defendant No.1 does not execute the Sale Deed till 01.07.1978,

the Plaintiff would be entitled to get the Sale Deed executed and

registered in his favour through the Court. The cost of registration

would be borne equally by the Plaintiff and Defendant No.1. It was

further mentioned that Defendant No.1 had also received half of the

cost of registration from the Plaintiff and furthermore, the responsibility

to receive the NOC would be of Defendant No.1. Paragraph No.4

mentions that Saeeduddin–Defendant No.2 was residing on the third

floor of the suit property which Defendant No.1-Ghulam Mohiuddin

would get vacated and ensure that physical possession is delivered

to the Plaintiff-Rehan Ahmed prior to registration. Further, the rent

notes executed by the tenants who are presently occupying the

suit property, would be executed by the tenants in favour of Rehan

Ahmed. One Ahsan Ahmed has been impleaded as proforma

defendant in respect of whom it was stated in paragraph No.5 of the

Compromise Deed that he had relinquished his entire right to the

property in favour of the Plaintiff–Rehan Ahmed through a Deed of

Relinquishment dated 28.06.1977 which was accepted by the Court

vide order dated 28.09.1977. In paragraph No.6 it was stated that

Defendant No.2-Saeeduddin admitted that he did not have the right

to sell or execute the Agreement to Sell but now Defendant No.1,

who was the real owner of the suit property, admits this agreement.

Therefore, there is no hindrance in passing the compromise decree.

The property was also described in the Compromise Deed to be a

pacca house comprising of three stories and one chauk including

the entire internal houses of the three storeys and five shops 

702 [2024] 4 S.C.R.

Digital Supreme Court Reports

outside along with the staircase adjoining the shops. The house was

numbered as 54/1 in the municipal records, whereas the five shops

were numbered as 52, 53, 55, 56 and 57. Thus the entire property

in question including the house of the five shops having municipal

numbers 52 to 57 (except 54), Circle No.1.

5. The Addl.District & Sessions Judge, Court No.1, Jaipur City, Jaipur

proceeded with the compromise and required the same to be duly

verified for which due time was granted to the parties. On 09.05.1979,

initially the suit was dismissed in the absence of the Plaintiff.

However, on the same date, upon an application being filed, the

case was again taken up on board. The Trial Court recorded that

Rehan Ahmed and that Mohiuddin (Defendant No.1) had executed

the compromise. The Plaintiff (Rehan Ahmed) further stated that he

does not want to pursue any proceedings against Saeeduddin and

also Ahsan Ahmed-Defendant Nos.2 and 3, as such the suit was

dismissed against Saeeduddin and Ahsan Ahmed. It was decreed

against Ghulam Mohiuddin as per the compromise. Accordingly, a

decree was drawn. As per the decree, when the defendant did not

execute the Sale Deed, the Plaintiff -Decree holder initiated the

proceedings for execution. In the execution proceedings Defendant

No.1 Ghulam Mohiuddin filed objections stating that the Plaintiff had

not paid the balance sale consideration, and had allowed substantial

time to pass for about six to seven years, during which time the

value of the property had doubled and as such the decree could not

be executed now on account of the default of the Plaintiff-Decree

holder. These objections were dismissed by the Executing Court

by a detailed order dated 09.12.1998 on the findings that before

the registration of the Sale Deed, Defendant No.1 was required to

fulfil his obligations which included getting the third floor vacated,

getting the NOC and also getting the rent deeds transferred in the

name of the Plaintiff. As such there was no default on the part of the

Plaintiff. In the meantime, the Defendant No.1 Mohiuddin died. The

order dated 09.12.1998 was challenged by one General Tariq, s/o.

Defendant No.2- Saeeduddin and legal heir of Defendant No.1 Gulam

Mohiuddin, claiming rights under a sale executed by Defendant No.1

Mohiuddin by way of S.B.Civil Revision Petition No.55 of 1999. The

said revision came to be dismissed by the High Court vide order

dated 02.06.2006. General Tariq preferred a Special Leave Petition

before this Court registered as S.L.P.(C) No.12463 of 2006, which 

[2024] 4 S.C.R. 703

Rehan Ahmed (D) Thr. Lrs. v. Akhtar Un Nisa (D) Thr. Lrs.

came to be dismissed by this Court vide order dated 11.08.2006.

With the dismissal of the Special Leave Petition the innings of the

objections under Section 47 CPC filed by the Judgment-debtor –

Defendant No.1 Mohiuddin came to an end. General Tariq, s/o.

Defendant no.2- Saeeduddin did not carry the matter any further by

way of review or otherwise before this court. However, a new round of

objections under Section 47 CPC came to be initiated by respondent

no.1 – Akhtar Un Nisa, wife of Defendant No.2-Saeeduddin and the

mother of General Tariq. The objections by respondent No.1 Akhtar

Un Nisa are to the following effect:

I. The decree dated 09.05.1979 is without jurisdiction and a nullity;

II. The property in the suit was a joint property of Ghulam Mohiuddin

and Saeeduddin– Defendants No. 1 and 2 respectively;

III. The suit having been filed as against both the brothers, the

compromise deed could not have been arrived at between the

Plaintiff and Defendant No.1 alone;

IV. The Trial Court could not have accepted the settlement/

compromise between the Plaintiff and Defendant No.1 regarding

Defendant No.2 vacating the third story of the house in question

and the rent notes being transferred in favour of the plaintiff.

V. Since there was no decree against Saeeduddin, as such Decree

holder could not have any right of getting possession of the

portion of the property which was admittedly in possession of

Saeeduddin and owner. Further, the tenants of Saeeduddin in

the disputed property were tenants of the applicant-objector

Akhtar Un Nisa-respondent no.1.

6. The Executing Court, vide judgment and order dated 03.05.2007,

dismissed the objections under Section 47 CPC filed by Smt.Akhtar

Un Nisa.

7. Aggrieved by the same, Smt.Akhtar Un Nisa preferred a revision

before the High Court which has since been allowed by the impugned

order giving rise to the present appeal.

8. After careful consideration of the arguments presented by both

sides, this Court believes that the High Court erred in setting aside

the Executing Court’s order dated 09.12.1998 and in declaring

the Trial Court’s decree dated 09.05.1979 void. The High Court’s 

704 [2024] 4 S.C.R.

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decision appears to be based on several incorrect assumptions and

observations.

9. The core of the High Court’s reasoning rests on the erroneous

assumption that the property was jointly owned by Defendants No.

1 and No. 2, and that the absence of Defendant No. 2’s signature on

the compromise dated 11.05.1978 invalidated the decree. However,

Defendant No. 2 has consistently acknowledged that he had no

ownership rights over the property. In his written statement to the

Trial Court in Suit No. 13/72, he explicitly stated that the property

belonged solely to Defendant No. 1. This was further supported by a

family arrangement dated 17.09.1976 and reinforced in Paragraph 6

of the compromise deed. The compromise, signed by Defendant No.

1 and the plaintiff and later verified by Defendant No. 2 through an

application dated 14.05.1979, substantiates that Defendant No. 1 was

the sole owner. These facts were upheld by the High Court and this

Court in previous proceedings. During the challenge to the execution

proceedings filed by General Tarik before the High Court, the High

Court vide order dated 11.8.2006 had also recorded the finding that

Defendant no.2 did not have ownership rights over the suit property

which fact was also upheld by this Court. Defendant no. 2 had limited

rights of being in possession of the third floor of suit property. Due

to the aforesaid reasons, the Plaintiff and Defendant no. 1 were the

only necessary parties needed for the compromise dated 11.05.1978

as Defendant no.1 was the sole owner of the suit property.

10. The High Court also incorrectly held that the provisions of Order

XXIII, Rule 3 of the CPC were not adhered to, claiming that the

Trial Court failed to properly verify the compromise. It is essential

to clarify that the compromise was indeed reached on 11.05.1978,

with its verification delayed due to various adjournments caused

by the absence or illness of Defendant No.1 and other procedural

delays. On 09.05.1979, a fresh compromise application containing

identical terms was submitted and duly signed by both parties due to

the original being misplaced. The Trial Court then correctly recorded

and verified this compromise, fulfilling the requirements of Order

XXIII, Rule 3 of the CPC.

11. It must be made clear that the compromise between the Plaintiff

and Defendant no. 1 was arrived on 11.05.1978 and it was only the

procedural requirements of Order XXIII Rule 3 of verifying and the 

[2024] 4 S.C.R. 705

Rehan Ahmed (D) Thr. Lrs. v. Akhtar Un Nisa (D) Thr. Lrs.

compromise before the Court which were eventually completed on

09.05.1979. A perusal of the record of proceedings before the Trial

Court reveals that verification of the terms of the compromise was

attempted on 11.05.1978 but was not possible as Defendant No.1

was not present. Moreover, on subsequent dates being 11.5.1978,

24.07.1978, 31.01.1979 and 20.03.1979, either due to the illness of

Defendant no.1 or due to the Presiding Officer not being present,

there were various adjournments before the Trial Court. Finally, on

09.05.1979, Gulam Mohiuddin appeared before the Court and the

parties submitted a fresh compromise application was filed because

the earlier compromise application submitted on 11-05-1978 was not

traceable on the record of the Court containing the same terms and

conditions as in the compromise application earlier filed on 11.05.1978.

The said application was also duly signed by both the parties. On

the basis of the said compromise presented on 09.05.1979, the Trial

Court took the compromise application on record, verified the fresh

compromise application fulfilling all the terms and conditions of Order

XXIII Rule 3 CPC. The terms and conditions of the compromise

were read over to the parties and were accepted by them and the

signatures of the parities were taken on the compromise application

by the Court and thereafter the Court recorded its satisfaction on the

compromise application, which is on the record of the Trial Court. The

decree dated 09.05.1979 was passed based on this compromise.

12. As far as the terms of the compromise are concerned, which have

also been questioned by the High Court, the agreement stipulated

that Defendant No. 1 was to execute and register the sale deed in

favor of the plaintiff by 01.07.1978, after receiving balance payment of

Rs 25,000/-. The decree’s execution was contingent upon Defendant

No. 1 fulfilling conditions such as obtaining the NOC and ensuring

Defendant No. 2 vacating the portion of the property in question in

his possession. The recording of the compromise and the consequent

decree on 09.05.1979, although appearing procedurally delayed,

adhered to the process required under CPC.

13. Furthermore, the High Court overlooked the fact that General Tarik,

legal heir of Defendant No. 2, had previously objected to the execution

proceedings, which was dismissed on 09.12.1988. Subsequent

appeals before the High Court, including a Special Leave Petition

to this Court, were also dismissed. Therefore, similar objections by

Respondent No. 1, Smt. Akhtar Un Nisa, in her capacity as one of 

706 [2024] 4 S.C.R.

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the legal heirs of Defendant No. 2 would not be maintainable and

would amount to abuse of process of law.

14. In light of the reasons recorded above, this Court finds merit in the

appellant-plaintiff’s argument and holds that the Executing Court had

rightly rejected the objections under Section 47 CPC filed by Smt.

Akhtar Un Nisa vide order 03.05.2007.

15. Accordingly, the appeal is allowed. The impugned judgement of

the High Court is set aside, and the Executing Court’s order dated

03.05.2007 is restored and the objections of Respondent no.1 under

Section 47 of the CPC stand rejected.

16. There shall, however, be no order as to costs.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeal allowed.

Code of Criminal Procedure, 1973 – s. 439 – Discretion to grant bail ought not to be used arbitrarily, capriciously, and injudiciously – Appeal allowed – High Court ought not to have been granted bail on account of (i) seriousness of the crime; (ii) conduct of accused persons; and (iii) overall impact of crime on the society.

* Author

[2024] 4 S.C.R. 686 : 2024 INSC 323

Ramayan Singh

v.

State of Uttar Pradesh & Anr.

(Criminal Appeal No. 2168 of 2024)

19 April 2024

[Sanjay Karol and Satish Chandra Sharma,* JJ.]

Issue for Consideration

Whether the High Court appropriately exercised its discretion under

Section 439 of the CrPC while granting bail to the accused persons.

Headnotes

Code of Criminal Procedure, 1973 – s. 439 – Discretion to

grant bail ought not to be used arbitrarily, capriciously, and

injudiciously – Appeal allowed – High Court ought not to have

been granted bail on account of (i) seriousness of the crime;

(ii) conduct of accused persons; and (iii) overall impact of

crime on the society.

Held: Accused persons charged under s. 147, 148, 149, 323, 504,

506, 427, 394, 411, 302 and 120-B, Indian Penal Code along with

s. 7 of the Criminal Law Amendment Act 2013 – In relation to FIR

lodged by Appellant stating that persons including Respondent No.

2 and a co-accused attacked him, his uncle (the deceased) and

another person – Bail applications of both accused persons rejected

by trial court – Appeals against trial court orders allowed – Bail

granted by High Court – Appellant challenged correctness of High

Court’s orders – Appeal allowed – Grant of bail involves exercise

of discretionary power which ought not to be used arbitrarily,

capriciously; and injudiciously – Bail ought not to have been

granted on account of (i) seriousness of the crime; (ii) conduct of

accused person(s); and (iii) overall impact of the crime on society

at large as the accused persons had overwhelming influence in

the area. [Paras 15, 19]

Case Law Cited

Neeru Yadav v. State of U.P. [2014] 12 SCR 453 :

(2014) 16 SCC 508; Prasanta Kumar Sarkar v. Ashis

Chatterjee [2010] 12 SCR 1165 : (2010) 14 SCC 496;

Mahipal v. Rajesh Kumar [2019] 14 SCR 529 : (2020)

2 SCC 118 – relied on.

[2024] 4 S.C.R. 687

Ramayan Singh v. State of Uttar Pradesh & Anr.

List of Acts

Penal Code, 1860; Code of Criminal Procedure, 1973.

List of Keywords

Grant of bail; Exercise of discretion under Section 439 CrPC;

Parameters for granting bail.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2168

of 2024

From the Judgment and Order dated 24.04.2023 of the High Court of

Judicature at Allahabad in CRMBA No. 11828 of 2023

With

Criminal Appeal No. 2169 of 2024

Appearances for Parties

Devvrat, Sanjay Kumar Yadav, Prithvi Pal, Manoj Jain, Advs. for the

Appellant.

Sudhir Kumar Saxena, Sr. Adv., Lokesh Kumar Choudhary, Ms. Tulika

Mukherjee, Ajay Singh, Ms. Sneh Suman, Beenu Sharma, Venkat

Narayan, Subodh S. Patil, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Satish Chandra Sharma, J.

1. Leave granted.

2. The present appeal i.e., arising out of SLP(Crl.) No 14988 of 2023,

seeks to assail the correctness of a judgment of the Learned Single

Judge of the High Court of Judicature at Allahabad (the “High Court”)

dated 24.04.2023 wherein, the High Court allowed Vivek Pal @ Vikki

Pal’s / Respondent No. 2’s bail application under Section 439 of the

Code of Criminal Procedure, 1973 (“CrPC”) and accordingly enlarged

Respondent No. 2 on bail subject to certain conditions contained

therein (the “Impugned Order”).

3. By an order dated 31.10.2023, a co-accused i.e., Punit Pal was

enlarged on bail by a coordinate bench of the High Court. The appeal 

688 [2024] 4 S.C.R.

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filed by the Appellant against that order has been tagged with the

present appeal vide an order dated 02.01.2024 in SLP (Crl) No. 355

of 2024. Moreover, as the facts and the questions involved in the

present appeal(s) are similar, they have been heard together and

are being disposed of by this common judgment.

4. The facts of the case reveal that a First Information Report (the

“FIR”) was lodged by the Appellant i.e., the Original Complainant,

on 03.01.2022 stating that on 02.01.2022 at around 3:30 PM, the

Appellant along with his uncle i.e., Jitendra Singh (the “Deceased”)

and his driver i.e., Rahul were returning from Bankati Bazar when their

vehicle was stopped by the accused person(s) including inter alia (i)

Respondent No. 2; and (ii) Punit Pal. The accused persons verbally

abused the Deceased and proceeded to shatter the windows of the

vehicle with iron rods. Subsequently they dragged the Deceased

out of the vehicle – and physically assaulted the Deceased with

iron rods, hockey sticks and bats with an intention to kill him. It was

also alleged that although the Appellant and Rahul i.e., the Driver

attempted to intervene, they were injured by the accused persons.

The accused persons snatched the mobile phones of the Deceased

and the driver; as well as a gold chain belonging to the Deceased

and ran away from the spot of the incident. The Deceased was

initially rushed to the Primary Health Centre, Bankati, however, due

to the serious nature of the injuries he was referred to the District

Hospital, Basti and thereafter to Sahara Hospital in Lucknow where

he eventually succumbed to his injuries on 10.02.2022.

5. On the same day i.e., 10.02.2022, (i) an inquest report of the person

of the Deceased was prepared wherein injuries were recorded on the

head, hand and knee; and (ii) a post-mortem was conducted which

revealed 4 (four) major ante mortem head injuries on the person

of the Deceased. Pertinently, the cause of death was identified as

coma due to ante mortem head injuries.

6. Notably, Respondent No. 2 came to be apprehended in relation to

the FIR on 05.01.2022 and the murder weapon i.e., a bat used in

the assault of the Deceased was also recovered at his instance. On

the other hand, Punit Pal came to be apprehended on 07.01.2022.

A chargesheet came to be filed in relation to the FIR on 14.03.2022

under Section(s) 147, 148, 149, 323, 504, 506, 427, 394, 411,

302 and 120B of the Indian Penal Code, 1872 (“IPC”) read with

Section 7 of the Criminal Law Amendment Act, 2013 (the “Act”) (the 

[2024] 4 S.C.R. 689

Ramayan Singh v. State of Uttar Pradesh & Anr.

“Chargesheet”). Pursuant to the filing of the Chargesheet, committal

proceedings ensued and thereafter charges were framed against the

accused person(s) vide an order dated 19.04.2023.

7. Respondent No. 2 preferred an application seeking the grant of bail

in relation to the proceeding(s) emanating from the FIR before the

Learned Sessions Judge, Basti (the “Trial Court”). Vide an order

dated 15.03.2022, the aforesaid bail application came to be rejected

by the Trial Court. Thereafter, Respondent No. 2 filed an application

seeking the grant of bail which came to be allowed by the High Court

vide the Impugned Order.

8. On the other hand, Punit Pal preferred an application seeking the

grant of bail in relation to the proceeding(s) emanating from the FIR

before the Trial Cour. Vide an order dated 29.03.2022, the aforesaid

bail application came to be rejected by the Trial Court. Thereafter,

Punit Pal filed an application seeking the grant of bail which came

to be allowed by the High Court vide an order dated 31.10.2023.

9. The Appellant herein i.e., the Original Complainant filed the present

appeals assailing the correctness of the order(s) passed by the High

Court enlarging (i) Respondent No. 2; and (ii) Punit Pal on bail in

relation to the FIR.

10. The learned Counsel appearing on behalf of the Appellant, urged

the following:

(a) The High Court ought not to have exercised its jurisdiction to

grant Respondent No. 2 and Punit Pal bail in light of the fact

that (i) charges had been framed against the accused person(s);

(ii) recovery of the weapon used in the assault of the Deceased

has been effected from Respondent No. 2; (iii) well-reasoned

order(s)had been passed by the Trial Court declining the grant

of bail to Respondent No. 2; and Punit Pal;

(b) That there is a real and probable threat qua the ability to

influence witnesses in light of the overwhelming influence

exercised in the area by the accused person(s) including inter

alia Respondent No. 2 and Punit Pal i.e., after the incident all

shops near the place of occurrence remained shut for a period

of 10 (ten) days; and

(c) That Respondent No. 2; and Punit Pal have misused their

liberty i.e., an identified witness had previously sought police 

690 [2024] 4 S.C.R.

Digital Supreme Court Reports

protection from the Trial Court on account of threats having

been extended to him during the pendency of the trial; and it

was specifically contended that threats were extended to the

Appellant himself by to Respondent No. 2; and Punit Pal.

11. The learned Counsel appearing on behalf of the Respondent State

of Uttar Pradesh supported the stand of the Appellant. Moreover, it

was brought to our attention that both Respondent No. 2; and Punit

Pal were also being prosecuted under the provisions of the Uttar

Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.

12. On the other hand, Mr. Sudhir Kumar Saxena, learned Senior Counsel

appearing on behalf of the Respondent No. 2; and Punit Pal has

vehemently contended as under:

(a) That Respondent No. 2; and Punit Pal have been cooperating

with the trial, however, the Appellant has stalled proceedings

before the Trial Court; and

(b) That the allegation levelled against Respondent No. 2; and Punit

Pal vis-à-vis extension of threats to the Appellant was wholly

erroneous and is in fact, a part of a calculated effort to paint

Respondent No. 2; and Punit Pal in bad light; and

13. We have heard the learned counsel(s) appearing on behalf of the

parties and perused the materials on record.

14. The fulcrum of the dispute before this Court is whether the High

Court appropriately exercised its discretion under Section 439 of

the CrPC to grant Respondent No. 2; and Punit Pal bail in relation

to the proceeding(s) emanating out of the FIR?

15. It is well settled that the grant of bail involves the exercise of a

discretionary power which ought not to be used arbitrarily, capriciously;

and injudiciously.1 In the aforesaid prism we must assess the

correctness of the order(s) of the High Court granting Respondent

No. 2; and Punit Pal bail in relation to the proceeding(s) emanating

out of the FIR.

16. This Court in Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14

SCC 496, enunciated certain parameters on which the correctness of

1 Neeru Yadav v. State of U.P. [2014] 12 SCR 453 : (2014) 16 SCC 508

[2024] 4 S.C.R. 691

Ramayan Singh v. State of Uttar Pradesh & Anr.

an order granting bail must be evaluated. The relevant paragraph(s)

are reproduced as under:

“9. …It is trite that this Court does not, normally, interfere

with an order [Ashish Chatterjee v. State of W.B., CRM

No. 272 of 2010, order dated 11-1-2010 (Cal)] passed by

the High Court granting or rejecting bail to the accused.

However, it is equally incumbent upon the High Court to

exercise its discretion judiciously, cautiously and strictly

in compliance with the basic principles laid down in a

plethora of decisions of this Court on the point. It is well

settled that, among other circumstances, the factors to be

borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground

to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if

released on bail;

(v) character, behaviour, means, position and standing

of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being

influenced; and

(viii) danger, of course, of justice being thwarted by grant

of bail.

***

10. It is manifest that if the High Court does not advert to

these relevant considerations and mechanically grants bail,

the said order would suffer from the vice of non-application

of mind, rendering it to be illegal.”

17. Furthermore, this Court in Mahipal v. Rajesh Kumar, (2020) 2

SCC 118, followed Prasanta Kumar Sarkar (Supra) and succinctly

summarised the position qua interference by this Court vis-à-vis an

order granting bail. The relevant paragraph is reproduced as under: 

692 [2024] 4 S.C.R.

Digital Supreme Court Reports

“14. The provision for an accused to be released on bail

touches upon the liberty of an individual. It is for this

reason that this Court does not ordinarily interfere with an

order of the High Court granting bail. However, where the

discretion of the High Court to grant bail has been exercised

without the due application of mind or in contravention of

the directions of this Court, such an order granting bail

is liable to be set aside. The Court is required to factor,

amongst other things, a prima facie view that the accused

had committed the offence, the nature and gravity of the

offence and the likelihood of the accused obstructing the

proceedings of the trial in any manner or evading the

course of justice. The provision for being released on bail

draws an appropriate balance between public interest in

the administration of justice and the protection of individual

liberty pending adjudication of the case. However, the grant

of bail is to be secured within the bounds of the law and

in compliance with the conditions laid down by this Court.

It is for this reason that a court must balance numerous

factors that guide the exercise of the discretionary power

to grant bail on a case-by-case basis. Inherent in this

determination is whether, on an analysis of the record, it

appears that there is a prima facie or reasonable cause

to believe that the accused had committed the crime. It is

not relevant at this stage for the court to examine in detail

the evidence on record to come to a conclusive finding.”

18. Turning to the issue at hand, we note that Respondent No. 2; and

Punit Pal have been charged under inter alia Section(s) 147, 148,

149, 323, 504, 506, 427, 394, 411, 302 and 120B IPC on the basis

of the materials on record including but not limited to the postmortem report; and statements of witnesses. Furthermore, on 2 (two)

occasions there have been allegations levelled against Respondent

No. 2; and Punit Pal alleging inter alia that the accused persons have

attempted to intimidate the Appellant i.e., the Original Complainant

and another identified witnesses in an effort to de-rail the trial in the

present case.

19. Accordingly, in our considered opinion, the High Court ought not

to have granted Respondent No. 2; and Punit Pal bail in relation

to the proceedings emanating from the FIR on account of (i) the 

[2024] 4 S.C.R. 693

Ramayan Singh v. State of Uttar Pradesh & Anr.

seriousness of the crime; (ii) the conduct of the accused person(s);

and (iii) the overall impact of the crime on society at large i.e., the

accused person(s) were involved in a broad day-light murder which

led to the closure of a market for a prolonged period of 10 (ten) days

due to their overwhelming influence in the area.

20. In the aforementioned context, the impugned orders dated 24.04.2023

and 31.10.2023 granting bail to accused Vivek Pal @ Vikki Pal and

Punit Pal, respectively, cannot be sustained and are, accordingly,

set aside.

21. The appeals are allowed in the aforesaid terms. The bail bond(s) of

accused Vivek Pal @ Vikki Pal and Punit Pal shall stand cancelled.

The aforenoted person(s) shall be taken into custody forthwith. A copy

of this judgment shall be forwarded to the Trial Court and PS Lalganj,

Basti, Uttar Pradesh for onward action and necessary compliance. The

Trial Court is directed to conclude the trial expeditiously preferably

within a period of one year from the date of receipt of copy of this

judgment.

22. It is clarified that any observations made in this judgment shall not be

treated as an expression of opinion on the merits of the case at trial.

Headnotes prepared by: Result of the case:

Gaurav Upadhyay, Hony. Associate Editor Appeals allowed.

(Verified by: Shibani Ghosh, Adv.)

Madhya Pradesh Foreign Liquor Rules, 1996 – r.19 – Penalties – Permissible limits of loss of liquor in transit due to leakage, evaporation, wastage etc. – During the relevant license period of 2009-2010 when the violation occurred, r.19 provided that if permissible limits of loss of liquor exceeded, imposition of penalty was to be about four times the maximum duty payable on foreign liquor – However, no action was initiated against the appellant during the relevant license period– r.19 was substituted by an amendment in 2011 reducing penalty to an amount not exceeding the duty payable on foreign liquor – Demand notice issued in 2011 – Payment of penalty, if to be as per the repealed r.19 or the substituted r.19:

* Author

[2024] 4 S.C.R. 664 : 2024 INSC 327

Pernod Ricard India (P) Ltd.

v.

The State of Madhya Pradesh & Ors.

(Civil Appeal Nos. 5062-5099 of 2024)

19 April 2024

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

Issue for Consideration

Issue as regards the applicability of the relevant rule for imposition

of penalty. Whether it was the rule that existed when the violation

occurred during the license period of 2009-10 (rule 19 of Madhya

Pradesh Foreign Liquor Rules, 1996, before the amendment) or

the rule 19 that was substituted by an amendment in 2011 when

proceedings for penalty were initiated.

Headnotes

Madhya Pradesh Foreign Liquor Rules, 1996 – r.19 – Penalties

– Permissible limits of loss of liquor in transit due to leakage,

evaporation, wastage etc. – During the relevant license period

of 2009-2010 when the violation occurred, r.19 provided that

if permissible limits of loss of liquor exceeded, imposition of

penalty was to be about four times the maximum duty payable

on foreign liquor – However, no action was initiated against

the appellant during the relevant license period– r.19 was

substituted by an amendment in 2011 reducing penalty to an

amount not exceeding the duty payable on foreign liquor –

Demand notice issued in 2011 – Payment of penalty, if to be

as per the repealed r.19 or the substituted r.19:

Held: Penalty to be imposed on the appellants will be on the basis of

r.19 as substituted on 29.03.2011 – A repealed provision will cease

to operate from the date of repeal and the substituted provision

will commence to operate from the date of its substitution, subject

to specific statutory prescription – The operation of a subordinate

legislation is determined by the empowerment of the parent act –

The legislative authorization enabling the executive to make rules

prospectively or retrospectively is crucial – Without a statutory

empowerment, subordinate legislation will always commence to

operate only from the date of its issuance and at the same time,

cease to exist from the date of its deletion or withdrawal – Even 

[2024] 4 S.C.R. 665

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

s.63 of the M.P. Excise Act, 1915 does not provide continuation

of a repealed provision to rights and liabilities accrued during its

subsistence – Further, r.19 which was substituted on 29.03.2011 was

not notified to operate from any other date by the Government – If

the amendment by way of a substitution in 2011 was intended to

reduce the quantum of penalty for better administration and regulation

of foreign liquor, there is no justification to ignore the subject and

context of the amendment and permit the State to recover the

penalty as per the unamended Rule – Purpose of the amendment

was to achieve a proper balance between crime and punishment or

the offence and penalty – Classifying offenders into before or after

the amendment for imposing higher and lower penalties does not

serve any public interest – The substituted Rule alone will apply to

pending proceedings – Impugned order of the Division Bench of the

High Court set aside. [Paras 2.1, 13, 14, 17, 32, 35]

Administrative Law – Subordinate legislation – Operation of –

Prospective/retrospective – Principles governing - Discussed.

Madhya Pradesh General Clauses Act, 1957 – s.10 – Effect

of Repeal – M.P. Excise Act, 1915 – Madhya Pradesh Foreign

Liquor Rules, 1996 – r.19 – General Clauses Act, 1897 – s.6 –

Violation occurred during the license period of 2009-10 – r.19

substituted in 2011 imposed lesser penalty than the repealed

r.19 if permissible limits of loss of liquor exceeded – Demand

notice issued in 2011 – Payment of penalty, if to be as per the

repealed r.19 or the substituted r.19 – Plea of the respondent

that as s.10 states that where any Madhya Pradesh Act repeals

any enactment then, unless a different intention appears,

the repeal shall not affect any right, privilege, obligation or

liability, acquired, accrued or incurred under any enactment

so repealed; State of M.P. can continue to apply the repealed

Rule for the transaction of 2009-2010 by virtue of specific

provisions under the 1957 Act:

Held: s.10 of the MP General Clauses Act by itself would not make any

difference as the Section is applicable only to enactments, i.e. when

any M.P. Act repeals any enactment and not a subordinate legislation

– Interpreting s.6, an identical provision of the General Clauses Act,

1897, this Court has consistently held that s.6 of the 1897 Act, has

no application to subordinate legislation – Further, the subject of

administration of liquor requires close monitoring and the amendment

must be seen in this context of bringing about good governance and

effective management – Seen in this context, the principle of s.10 of 

666 [2024] 4 S.C.R.

Digital Supreme Court Reports

1957 Act, relating continuation of a repealed provision to rights and

liabilities that accrued during the subsistence of the Rule does not

subserve the purpose and object of the amendment. [Paras 31, 32]

Administrative law – Subordinate legislation – Rule making

and its enforcement – Madhya Pradesh Foreign Liquor Rules,

1996 – r.19:

Held: The process of identifying a crime and prescribing an

appropriate punishment is a complex and delicate subject that

the State has to handle while making rules and enforcing them

– The gravity of the offence, its impact on society and human

vulnerability are taken into account to provide the required

measure of deterrence and reform – Day to day working of the

Rules, reposing their effectiveness, ineffectiveness, deficiency of

deterrence, disproportionate penalty having a chilling effect on

genuine businesses, are some routine factors which require the

executive to make necessary amendments to the rules – In this

context, depending on the nature of offence, the proportionate

penalty is required to be modulated from time to time – In the present

case, the regulatory process required the Government to deal with

the problem of diversion and unlawful sale of foreign liquor and also

provide an appropriate penalty and punishment – In light of this, the

felt need of the State to amend and substitute r.19 which provided

a higher penalty at four times the duty, with a simple penalty not

exceeding the duty payable can be appreciated. [Para 31]

Madhya Pradesh General Clauses Act, 1957 – s.31 – Application

of Act to Ordinances and Regulations - “unless there is anything

repugnant in the subject and context” – Madhya Pradesh Foreign

Liquor Rules, 1996 – r.19 – By virtue of s.31, the provisions

of the 1957 Act were made applicable to the construction

of rules – By such application, the principle of a repeal of a

provision not affecting any liability incurred thereunder was

also extended to the operation of the subordinate legislations

under the Act – Therefore, the respondent-State submitted that

having incurred the liability of exceeding the prescribed limits

of losses of liquor for the license period 2009-10, the liability

is not affected by the subsequent substitution of r.19:

Held: Conscious of the big leap to extend the 1957 Act, for

construction of subordinate legislations, s.31 took care to provide

that it may be done only when it is not repugnant to the subject and

context – If the amendment of r.19 by way of a substitution in 2011 

[2024] 4 S.C.R. 667

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

intended to reduce the quantum of penalty for better administration

and regulation of foreign liquor, there is no justification to ignore

the subject and context of the amendment and permit the State

to recover the penalty as per the unamended Rule. [Paras 23, 32]

Interpretation of Statutes – Interpretation statutes like the

General Clauses Act, 1897 - Purpose:

Held: Are enactments intended to set standards in construction of

statutes – The expression construction is of seminal importance

as it is oriented towards enabling a seeker of the text of a

statute to understand the true meaning of the words and their

intendment – Apart from setting coherent and consistent methods of

understanding enactments, the interpretation statutes also subserve

the purpose of reducing prolixity of legislations – Therefore, the

standard principles formulated in the interpretation statutes must

be read into any and every enactment falling for consideration –

Interpretation statutes or definitions in interpretation clauses are only

internal aids of construction of a statute – Subordinate legislation,

by its very nature, rests upon the executive’s understanding of

the primary legislation – When a Court is of the opinion that such

an understanding is not in consonance with the statute, it sets it

aside for being ultra-vires to the primary statute. [Paras 24, 27, 28]

Madhya Pradesh Foreign Liquor Rules, 1996 – r.19 – Retroactive

operation – Substituted Rule imposed lesser penalty than the

repealed rule if permissible limits of loss of liquor exceeded –

Plea of the respondent-State that the substituted Rule cannot

be given retrospective effect:

Held: Submission rejected – It is wrong to assume that the substituted

Rule is given retrospective effect if its benefits are made available

to pending proceedings or to those that have commenced after the

substitution – r.19 which was substituted on 29.03.2011 was made

applicable to proceedings that commenced with the issuance of the

demand notice in November, 2011 – The Rule operates retroactively

and thus saves it from arbitrarily classifying the offenders into two

categories with no purpose to subserve. [Para 33]

Madhya Pradesh Foreign Liquor Rules, 1996 – r.19 –

Constitution of India – Article 20(1) – Substituted Rule imposed

lesser penalty than the repealed rule if permissible limits of loss

of liquor exceeded – Bar of Article 20(1) imposing a penalty

greater than the one in force at the time of the commission

of the offence, if applicable:

668 [2024] 4 S.C.R.

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Held: No – The substituted penalty only mollifies the rigour of the

law by reducing the penalty from four times the duty to value of

the duty – Therefore, the bar of Article 20(1) of imposing a penalty

greater than the one in force at the time of the commission of the

offence has no application – Single Judge was of the view that

the amendment by way of substitution had the effect of repealing

the law which existed as on the date of repeal – Division Bench

on the other hand, held that levy of penalty was substantive law,

and as such, it cannot operate retrospectively – Reasoning of

both, rejected. [Para 35]

Case Law Cited

Pushpa Devi v. Milkhi Ram [1990] 1 SCR 278 : (1990)

2 SCC 134; Vanguard Fire and General Insurance Co.

Ltd. v. Fraser and Ross [1960] 3 SCR 857 – relied on.

State of Rajasthan v. Mangilal Pindwal [1996] Supp.

3 SCR 98 : (1996) 5 SCC 60; West U.P. Sugar Mills

Association v. State of U.P. [2002] 1 SCR 897 : (2002)

2 SCC 645; Zile Singh, Government of India v. Indian

Tobacco Association [2005] Supp. 2 SCR 859 : (2005) 7

SCC 396; Koteswar Vittal Kamath v. K. Rangappa Baliga

& Co. [1969] 3 SCR 40 : (1969) 1 SCC 255; Zile Singh v.

State of Haryana [2004] Supp. 5 SCR 272 : (2004) 8 SCC

1; Gottumukkala Venkata Krishamraju v. Union of India

[2018] 11 SCR 39 : (2019) 17 SCC 590; Rayala Corp.

v. Director of Enforcement [1970] 1 SCR 639 : (1969) 2

SCC 412; Kolhapur Canesugar Works Ltd. v. Union of

India [2000] 1 SCR 518 : (2000) 2 SCC 536; Keshavji

Ravji & Co. v. Commissioner of Income Tax [1990] 1

SCR 243 : (1990) 2 SCC 231; Dr. Major Meeta Sahai v.

State of Bihar [2019] 15 SCR 273 : (2019) 20 SCC 17;

Rattan Lal v. State of Punjab [1964] 7 SCR 676 : 1964

SCC OnLine SC 40; Basheer v. State of Kerala [2004]

2 SCR 224 : (2004) 3 SCC 609; Nemi Chand v. State of

Rajasthan (2018) 17 SCC 448; Trilok Chand v. State of

Himachal Pradesh (2020) 10 SCC 763; M/s. A.K. Sarkar

& Co. & Anr. v. The State of West Bengal & Ors. [2024]

3 SCR 356 : (2024) SCC OnLine SC 248 – referred to.

Books and Periodicals Cited

Halsbury’s Laws, (5th edn, 2018), vol 96, para 694

[2024] 4 S.C.R. 669

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

List of Acts

Madhya Pradesh Foreign Liquor Rules, 1996; M.P. Excise Act,

1915; Madhya Pradesh General Clauses Act, 1957; General

Clauses Act, 1897; Constitution of India.

List of Keywords

Loss of liquor; Foreign liquor; Penalty; Imposition of penalty;

Quantum of penalty reduced; Lesser penalty; Substitution by

an amendment; Repealed rule; Substituted rule; Subordinate

legislation; Prospective/retrospective/retroactive; Appropriate

punishment; Balance between crime and punishment/offence and

penalty; Interpretation statutes; Construction of statutes; Definitions

in interpretation clauses; Internal aids of construction.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5062-5099 of

2024

From the Judgment and Order dated 29.06.2017 of the High Court of

M.P. at Gwalior in WA Nos.42, 41, 40, 39, 38, 37, 36, 35, 34, 33, 32,

31, 30, 29, 28, 27, 26, 25, 24, 23, 22, 21, 20, 19, 17, 16, 15, 14, 13,

12, 11, 10, 9, 8, 7, 6 and 100 of 2017 and 425 of 2016

Appearances for Parties

Pratap Venugopal, Sr. Adv., Ms. Surekha Raman, Amarjit Singh

Bedi, Abhishek Anand, Ms. Unnimaya S, Shreyash Kumar, Advs.

for the Appellant.

Saurabh Mishra, A.A.G., Sunny Choudhary, Ajay Singh, Advs. for

the Respondents.

Judgment / Order of the Supreme Court

Judgment

Pamidighantam Sri Narasimha, J.

1. Leave Granted.

2. The short question for our consideration is the applicability of the

relevant rule for imposition of penalty; whether it is the rule that

existed when the violation occurred during the license period of 2009-

10 or the rule that was substituted in 2011 when proceedings for 

670 [2024] 4 S.C.R.

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penalty were initiated. As the substituted rule reduced the quantum

of penalty, the appellant insists on its application but the statutory

authorities as well as the Division Bench of the High Court rejected

his case and imposed higher penalty under the old rule.

2.1 For the reasons to follow, we have accepted the contention

of the appellant and, in allowing the appeal, determined that

the purpose of the amendment is to achieve a proper balance

between crime and punishment or the offence and penalty.

In light of this, and recognizing that classifying offenders

into before or after the amendment for imposing higher and

lower penalties does not serve any public interest, we have

directed that the substituted Rule alone will apply to pending

proceedings.

3. Facts:- The appellant is a sub-licensee under the M.P. Excise Act,

19151

 for manufacture, import and sale of Foreign Liquor, regulated

under the Madhya Pradesh Foreign Liquor Rules, 19962

.

3.1 Sub-licensees importing Foreign Liquor are granted transit

permits in which the origin, quality, quantity and point of delivery

of the imported liquor are recorded. At the point of destination, the

consignment is verified for quality and quantity, and a certificate

under Rule 13 is granted. Rule 16 prescribes the permissible

limits of loss of liquor in transit due to leakage, evaporation,

wastage etc. The purpose and object of this Rule is to prevent

illegal diversion of liquor for unlawful sale and also to prevent

evasion of excise duty. Relevant portion of Rule 16 is as follows:-

“Rule 16. Permissible limits of losses.-

(1) An allowance shall be made for the actual loss of spirit

by leakage, evaporation etc., and of bottled foreign

liquor by breakage caused by loading, unloading,

handling etc. in transit, at the rate mentioned

hereinafter. The total quantity of bottled foreign

liquor transported or exported shall be the basis for

computation of permissible losses.

1 Hereinafter referred to as “the Act”.

2 Hereinafter referred to as “the 1996 Rules”.

[2024] 4 S.C.R. 671

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

(2) Wastage allowances on the spirit transported to

the premises of FL 9 or FL 9-A licensee shall be

the same as given in sub-rule (4) of Rule 6 of the

Distillery Rules, 1995.

(3) Maximum wastage allowance for all exports of bottled

foreign liquor shall be 0.25% irrespective of distance.

(4) Maximum wastage allowance for all transports of

bottled foreign liquor shall be 0.1% if the selling

licensee and the purchasing licensee belong to the

same district. It shall be 0.25% if they belong to

different districts.

(5) If wastages/losses during the export or transport of

bottled foreign liquor exceed the permissible limit

prescribed in sub-rule (3) or (4), the prescribed duty

on such excess wastage of bottled foreign liquor shall

be recovered from the licensee.”

3.2 If the permissible limits of loss of liquor are exceeded, the

1996 Rules prescribe imposition of penalty. Rule 19 providing

for penalty that could be imposed during the relevant license

period of 2009-2010 was about four times the maximum duty

payable on foreign liquor. The relevant portion of Rule 19 is

as follows: -

“Rule 19. Penalties3

. –

(1) Without prejudice to the provisions of the Act, or

condition No. 4 of license in Form F.L. 1, condition

No. 7 of license in Form F.L 2, condition No. 4 of

license in Form F.L 3, the Excise Commissioner or

the Collector may impose a penalty not exceeding

Rs. 50,000 for contravention of any of these rules

or the provisions of the Act or any other rules made

under the Act or the order issued by the Excise

Commissioner.

(2) On all deficiencies in excess of the limits allowed

under Rule 16 and Rule 17, the F.L. 9 or FL 9-A,

3 Hereinafter “the old Rule”.

672 [2024] 4 S.C.R.

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F.L. 10-A or F.L. 10-B licensee shall be liable to

pay penalty at a rate exceeding three times but not

exceeding four times the maximum duty payable on

foreign liquor at that time, as may be imposed by the

Excise Commissioner or any officer authorized by him:

Provided that if it be proved to the satisfaction of the

Excise Commissioner or the authorized officer that

such excess deficiency or loss was due to some

unavoidable cause, like fire or accident and its first

information report was lodged in Police Station, he

may waive the penalty imposable under this sub-rule.

(3) The Excise Commissioner or the Collector may

suspend or cancel the license under Section 31 of

the Act upon a contravention of any of these rules

or provisions of the Act, or any other rules made

under the Act, or the orders issued by the Excise

Commissioner.”

4. Facts reveal that no action was initiated during the license year of

2009-2010.

5. On 29.03.2011, Rule 19 was substituted by an amendment. The

relevant portion of substituted provision is as follows:

“Rule 19. Penalties4

(1) …

(2) On all deficiencies in excess of the limits allowed

under rule 16 and rule 17, the F.L.-9, F.L-9-A, F.L.-

10-B Licensee shall be liable to pay penalty at a

rate not exceeding the duty payable on foreign

liquor at that time, as may be imposed by the Excise

Commissioner or any officer authorized by him:

Provided that if it be proved to the satisfaction of the

Excise Commissioner or the authorized officer that

such excess deficiency or loss was due to some

unavoidable causes like fire or accident and its First

Information Report was lodged in concerned Police

4 Hereinafter, “the substituted Rule”.

[2024] 4 S.C.R. 673

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

Station, he may waive the penalty imposable under

this sub-rule.”

(emphasis supplied)

6. As is evident, the above referred substituted Rule 19 reduces

penalty from four times the maximum duty payable to an amount

not exceeding the duty payable on foreign liquor.

7. Eight months after the amendment, a demand notice dated 22.11.2011

was issued directing payment of penalty for exceeding the permissible

limits during the license year 2009-2010. The notice demanded

penalty of four times the duty as per the old Rule 19. The appellant

replied, inter alia contending that penalty, if any, can only be under

the substituted Rule 19 as the old rule stood repealed, and in fact,

the demand is raised after the substituted Rule came into force.

8. The Deputy Commissioner5

 rejected the objections raised by the

appellant and confirmed the demand for payment of penalty at four

times the duty payable. The Deputy Commissioner’s order was

upheld by the Excise Commissioner6

, and thereafter by the Revenue

Board Gwalior7

.

9. Questioning the decisions of the statutory authorities, the appellant

filed a writ petition before the High Court which was heard and

disposed of with 40 other petitions raising a similar issue. The

Single Judge of the High Court was of the view that the new Rule

was introduced by way of a substitution and following the principles

in State of Rajasthan v. Mangilal Pindwal8

, West U.P. Sugar Mills

Association v. State of U.P.9

, Zile Singh, Government of India v. Indian

Tobacco Association10, he held that the old Rule stood repealed

from the statute book and only the substituted Rule applies to all

pending and future proceedings. He, therefore, set aside the orders

of the statutory authorities and remanded the matter back to them

for determining the penalty as per the substituted Rule.

5 By order dated 18.04.2012

6 By order dated 02.05.2013

7 By order dated 10.12.2013

8 [1996] Supp. 3 SCR 98 : (1996) 5 SCC 60

9 [2002] 1 SCR 897 : (2002) 2 SCC 645

10 [2005] Supp. 2 SCR 859 : (2005) 7 SCC 396

674 [2024] 4 S.C.R.

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10. The Division Bench of the High Court, by the order impugned herein,

reversed the decision of the Single Judge on the simple ground that as

the license was granted for one year, the Rule that existed during that

license year must apply. The reason for not applying the substituted

Rule according to the Division Bench is also that determination of

penalty being substantive law, cannot operate retrospectively.

11. Questioning the legality and validity of the decision of the Division

Bench of the High Court, the present appeals are filed. Mr. Pratap

Venugopal, Ld. Senior Advocate, appearing on behalf of the appellant

argued that the effect of substitution is to repeal the existing provision

from the statute book in its entirety and to enforce the newly substituted

provision. He would further submit that even for incidents which

took place when the old Rule was in force, it is the substituted Rule

that would be applicable, and therefore, the demand notice dated

22.11.2011 seeking payment of penalties under old Rule is illegal.

12. There is no difficulty in accepting the argument of Mr. Pratap

Venugopal on principle. In Koteswar Vittal Kamath v. K. Rangappa

Baliga & Co.11, this Court brought out the distinction between

supersession of a rule and substitution of a rule, and held that the

process of substitution consists of two steps – first, the old rule is

repealed, and next, a new rule is brought into existence in its place:

“8. On that analogy, it was argued that, if we hold that

the Prohibition Order of 1950, was invalid, the previous

Prohibition Order of 1119, cannot be held to be revived. This

argument ignores the distinction between supersession of

a rule, and substitution of a rule. In the case of Firm A.T.B.

Mehtab Majid & Co., the new Rule 16 was substituted for

the old Rule 16. The process of substitution consists of

two steps. First, the old rule it made to cease to exist and,

next, the new rule is brought into existence in its place.

Even if the new rule be invalid, the first step of the old

rule ceasing to exist comes into effect, and it was for this

reason that the court held that, on declaration of the new

rule as invalid, the old rule could not be held to be revived.”

11 [1969] 3 SCR 40 : (1969) 1 SCC 255

[2024] 4 S.C.R. 675

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

12.1 In Zile Singh v. State of Haryana12, this Court referred to the

legislative practice of an amendment by substitution and held

that substitution would have the effect of amending the operation

of law during the period in which it was in force.

“24. The substitution of one text for the other pre-existing

text is one of the known and well-recognised practices

employed in legislative drafting. “Substitution” has to be

distinguished from “supersession” or a mere repeal of an

existing provision.

25. Substitution of a provision results in repeal of the earlier

provision and its replacement by the new provision (see

Principles of Statutory Interpretation, ibid., p. 565). If any

authority is needed in support of the proposition, it is to

be found in West U.P. Sugar Mills Assn. v. State of U.P13.,

State of Rajasthan v. Mangilal Pindwal14 , Koteswar Vittal

Kamath v. K. Rangappa Baliga and Co.15 and A.L.V.R.S.T.

Veerappa Chettiar v. I.S. Michael16 . In West U.P. Sugar Mills

Assn.

17 case a three-Judge Bench of this Court held that

the State Government by substituting the new rule in place

of the old one never intended to keep alive the old rule.

Having regard to the totality of the circumstances centring

around the issue the Court held that the substitution had the

effect of just deleting the old rule and making the new rule

operative. In Mangilal Pindwal18 case this Court upheld the

legislative practice of an amendment by substitution being

incorporated in the text of a statute which had ceased to

exist and held that the substitution would have the effect

of amending the operation of law during the period in

which it was in force. In Koteswar case19 a three-Judge

Bench of this Court emphasised the distinction between

12 [2004] Supp. 5 SCR 272 : (2004) 8 SCC 1

13 [2002] 1 SCR 897 : (2002) 2 SCC 645

14 [1996] Supp. 3 SCR 98 : (1996) 5 SCC 60

15 [1969] 3 SCR 40 : (1969) 1 SCC 255

16 1963 Supp (2) SCR 244

17 [2002] 1 SCR 897 : (2002) 2 SCC 645

18 (1996) 5 SCC 60

19 (1969) 1 SCC 255

676 [2024] 4 S.C.R.

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“supersession” of a rule and “substitution” of a rule and

held that the process of substitution consists of two steps:

first, the old rule is made to cease to exist and, next, the

new rule is brought into existence in its place.”

12.2 A slight variation is noticed in a recent decision in Gottumukkala

Venkata Krishamraju v. Union of India,

20 where this Court held

that:

“18. Ordinarily wherever the word “substitute” or

“substitution” is used by the legislature, it has the effect

of deleting the old provision and make the new provision

operative. The process of substitution consists of two

steps : first, the old rule is made to cease to exist and,

next, the new rule is brought into existence in its place.

The rule is that when a subsequent Act amends an earlier

one in such a way as to incorporate itself, or a part of itself,

into the earlier, then the earlier Act must thereafter be read

and construed as if the altered words had been written

into the earlier Act with pen and ink and the old words

scored out so that thereafter there is no need to refer to

the amending Act at all. No doubt, in certain situations,

the Court having regard to the purport and object sought

to be achieved by the legislature may construe the word

“substitution” as an “amendment” having a prospective

effect. Therefore, we do not think that it is a universal

rule that the word “substitution” necessarily or always

connotes two severable steps, that is to say, one of

repeal and another of a fresh enactment even if it implies

two steps. However, the aforesaid general meaning is to

be given effect to, unless it is found that the legislature

intended otherwise. Insofar as present case is concerned,

as discussed hereinafter, the legislative intent was also to

give effect to the amended provision even in respect of

those incumbents who were in service as on 1-9-2016.”

13. The operation of repeal or substitution of a statutory provision is

thus clear, a repealed provision will cease to operate from the date

20 [2018] 11 SCR 39 : (2019) 17 SCC 590

[2024] 4 S.C.R. 677

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

of repeal and the substituted provision will commence to operate

from the date of its substitution. This principle is subject to specific

statutory prescription. Statute can enable the repealed provision to

continue to apply to transactions that have commenced before the

repeal. Similarly, a substituted provision which operates prospectively,

if it affects vested rights, subject to statutory prescriptions, can also

operate retrospectively.

14. The principle governing subordinate legislation is slightly different in

as much as the operation of a subordinate legislation is determined

by the empowerment of the parent act. The legislative authorization

enabling the executive to make rules prospectively or retrospectively

is crucial. Without a statutory empowerment, subordinate legislation

will always commence to operate only from the date of its issuance

and at the same time, cease to exist from the date of its deletion or

withdrawal. The reason for this distinction is in the supremacy of the

Parliament and its control of executive action, being an important

subject of administrative law.

15. We will now refer to the rule making power under the M.P. Excise

Act, 1915. Section 62 of the Act empowers the State to make rules.

Relevant portion of Section 62 is as follows: –

“62. Power to make rules.— (1) The State Government

may make rules for the purpose of carrying out the

provisions of this Act.

(2) In particular, and without prejudice to the generality

of the foregoing provision, the State Government may

make rules—

(a) prescribing the powers and duties of Excise Officers;

(b) to (n) …

(3) The power conferred by this section of making rules

is subject to the condition that the rules made under subsection (2) (a), (b), (c), (e), (f), (i), (l) and (m) shall be

made after previous publication :

Provided that any such rules may be made without previous

publication if the State Government considers that they

should be brought into force at once.”

678 [2024] 4 S.C.R.

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16. Section 62 does not enable the executive to continue the application of

a repealed rule to events that have commenced during the subsistence

of the Rule. However, Section 63 is of some importance. It enables

the executive to operate the Rule from a date as may be specified

in that behalf. Section 63 is reproduced as below:-

“63. Publication of rules and notifications.— All rules

made and notifications issued under this Act shall be

published in the Official Gazette, and shall have effect

from the date of such publication or from such other date

as may be specified in that behalf.”

17. It is clear that even Section 63 of the Act does not provide continuation

of a repealed provision to rights and liabilities accrued during its

subsistence. At the most, Section 63 of the M.P. Excise Act, 1915,

only enables the government to issue subordinate legislation with

effect from such a date as may be specified. We may mention

at this very stage that Rule 19 which has been substituted on

29.03.2011 has not been notified to operate from any other date

by the Government.

18. Faced with this situation, Mr. Saurabh Mishra, learned A.A.G. for the

State, came up with an attractive argument that the State of M.P. can

continue to apply the repealed Rule for the transaction of 2009-2010

by virtue of specific provisions under the Madhya Pradesh General

Clauses Act, 1957. He brought to our notice Section 10 of the Act

which is as follows:-

“10. Effect of Repeal. Where any Madhya Pradesh Act

repeals any enactment then, unless a different intention

appears, the repeal shall not-

(a) revive anything not in force or existing at the time at

which the repeal takes effect; or

(b) affect the previous operation of any enactment so

repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability, acquired,

accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in

respect of any offence committed against any enactment

so repealed; or

[2024] 4 S.C.R. 679

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

(e) affect any investigation, legal proceeding or remedy

in respect of any such right, privilege, obligation, liability,

penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy

may be instituted, continued or enforced, and any such

penalty, forfeiture or punishment may be imposed, as

if the repealing Madhya Pradesh Act had not been

passed.”

19. The above-referred Section of the MP General Clauses Act by

itself would not make any difference as the Section is applicable

only to enactments, i.e. when any M.P. Act repeals any enactment

and not a subordinate legislation. Interpreting an identical provision

of the General Clauses Act, 1897, i.e. Section 6, this Court has

consistently held that Section 6 of the General Clauses Act, 1897,

has no application to subordinate legislation.21

20. Mr. Saurabh Mishra then referred to Section 31 of Madhya Pradesh

General Clauses Act, 1957, which is as under:

“31. Application of Act to Ordinances and Regulations.-

The provisions of this Act shall apply, unless there is

anything repugnant in the subject or context-

(a) to any Ordinance or Regulation as they apply in relation

to Madhya Pradesh Acts:

Provided that sub-section (1) of section 3 of this Act shall

apply to any Ordinance or Regulation as if for the reference

in the said sub-section (1) to the day of the first publication

of the assent to an Act in the Official Gazette there were

substituted a reference to the day of the first publication

of the Ordinance or the Regulation, as the case may be,

in that Gazette;

(b) to the construction of rules, regulations, bye-laws,

orders, notifications, schemes or forms made or issued

under a Madhya Pradesh Act.”

21 Rayala Corp. v. Director of Enforcement [1970] 1 SCR 639 : (1969) 2 SCC 412; Kolhapur Canesugar

Works Ltd. v. Union of India [2000] 1 SCR 518 : (2000) 2 SCC 536

680 [2024] 4 S.C.R.

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21. By virtue of Section 31, the provisions of the Madhya Pradesh

General Clauses Act, 1957 are made applicable to the construction

of rules. By such application, the principle of a repeal of a provision

not affecting any liability incurred thereunder is also extended to

the operation of the subordinate legislations under the Act. It is,

therefore, submitted that having incurred the liability of exceeding

the prescribed limits of losses of liquor for the license period 2009-

10, the liability is not affected by the subsequent substitution of

Rule 19.

22. This submission was not raised before the Single Judge or the

Division Bench. However, as law operates irrespective of the choices

of parties or their counsels in raising and referring to it in a court of

law, we have permitted him to argue this question of law. We will

now examine the application of Section 31 and its operation.

23. Section 31 of the M.P. General Clauses Act, 1957, relating to

extension of its provisions to subordinate legislation is thus, distinct

and more ambitious than that of its big sister, the General Clauses

Act, 1897, the Central Legislation which extends its provisions to

Ordinances and Regulations which are in the nature of legislation.22

Conscious of the big leap to extend the M.P. General Clauses Act,

1957, for construction of subordinate legislations, Section 31 takes

care to provide that it may be done only when it is not repugnant to

the subject and context. In its own words – unless there is anything

g repugnant in the subject and context.

24. Interpretation statutes such as the General Clauses Act, 1897, are

enactments intended to set standards in construction of statutes. The

expression construction is of seminal importance as it is oriented

towards enabling a seeker of the text of a statute to understand the

true meaning of the words and their intendment. Apart from setting

coherent and consistent methods of understanding enactments,

the interpretation statutes also subserve the purpose of reducing

prolixity of legislations. The standard principles formulated in the

interpretation statutes must, therefore, be read into any and every

enactment falling for consideration.

22 Thus, this Court has held in a number of cases that the General Clauses Act, 1897 is only applicable to

statutes.

[2024] 4 S.C.R. 681

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

25. In Pushpa Devi v. Milkhi Ram23 while explaining the purpose and object

of prefacing a definition or an interpretation with the phrase- “unless

there is anything repugnant in the subject or context”- this court held :-

“19. The opening sentence in the definition of the section

states “unless there is anything repugnant in the subject

or context”. In view of this qualification, the court has not

only to look at the words but also to examine the context

and collocation in the light of the object of the Act and the

purpose for which a particular provision was made by the

legislature. Reference may be made to the observations of

Wanchoo, J. in Vanguard Fire and General Insurance Co.

Ltd. v. M/s Fraser and Ross [(1960) 3 SCR 857, 863: AIR

1960 SC 971: (1960) 30 Com Cas 13] where the learned

Judge said that even where the definition is exhaustive

inasmuch as the word defined is said to mean a certain

thing, it is possible for the word to have a somewhat different

meaning in different sections of the Act depending upon

the subject or context…

20. Great artistry on the bench as elsewhere is, therefore,

needed before we accept, reject or modify any theory

or principle. Law as creative response should be so

interpreted to meet the different fact situations coming

before the court. For, Acts of Parliament were not drafted

with divine prescience and perfect clarity. It is not possible

for the legislators to foresee the manifold sets of facts

and controversies which may arise while giving effect to

a particular provision. Indeed, the legislators do not deal

with the specific controversies. When conflicting interests

arise or defect appears from the language of the statute,

the court by consideration of the legislative intent must

supplement the written word with ‘force and life’. See, the

observation of Lord Denning in Seaford Court Estate Ltd.

v. Asher [(1949) 2 KB 481, 498].”

26. In Vanguard Fire and General Insurance Co. Ltd. v. Fraser and

Ross24 this Court held that:

23 [1990] 1 SCR 278 : (1990) 2 SCC 134

24 [1960] 3 SCR 857 : (1960) 3 SCR 857

682 [2024] 4 S.C.R.

Digital Supreme Court Reports

“6. …That is why all definitions in statutes generally begin

with the qualifying words similar to the words used in the

present case, namely, unless there is anything repugnant

in the subject or context. Therefore in finding out the

meaning of the word ‘insurer’ in various sections of the

Act, the meaning to be ordinarily given to it is that given

in the definition clause. But this is not inflexible and there

may be sections in the Act where the meaning may have

to be departed from on account of the subject or context

in which the word has been used and that will be giving

effect to the opening sentence in the definition section,

namely, unless there is anything repugnant in the subject

or context. In view of this qualification, the court has not

only to look at the words but also to look at the context, the

collocation and the object of such words relating to such

matter and interpret the meaning intended to be conveyed

by the use of the words under the circumstances…”

27. In the ultimate analysis, interpretation statutes or definitions in

interpretation clauses are only internal aids of construction of a

statute. Who do they aid? Interpretation is the exclusive domain of

the Court.25 A Constitutional Court is tasked with the sacred duty of

interpreting the Constitution, Acts of Parliament or States, subordinate

legislations, regulations, instructions and even to practices having

force of law. Whichever or wherever the instrument, interpretation

is the exclusive province of the Court.26 The principle is aptly

enunciated as:

“The Court has the function of authoritatively construing

legislation, that is, determining its legal meaning so far as

is necessary to decide a case before it. This function is

exclusive to the Court, and a meaning found by any other

person, for example an authorising agency, an investigating

agency, an executing agency, a prosecuting agency, or

even the legislature itself, except when intending to declare

or amend the law, is always subject to the determination

of the court.

25 Keshavji Ravji & Co. v. Commissioner of Income Tax, [1990] 1 SCR 243 : (1990) 2 SCC 231

26 Dr. Major Meeta Sahai v. State of Bihar [2019] 15 SCR 273 : (2019) 20 SCC 17

[2024] 4 S.C.R. 683

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

It is usually said that the making of law, as opposed to

its interpretation, is a matter for the legislature, and not

for the courts, but, in so far as that legislature does not

convey its intention clearly, expressly and completely,

it is taken to require the court to spell out that intention

where necessary. This may be done either by finding and

declaring implications in the words used by the legislator, or

by regarding the breadth or other obscurity of the express

language as conferring a delegated legislative power to

elaborate its meaning in accordance with public policy

(including legal policy) and the purpose of the legislation.

Whichever course is adopted, in accordance with the

doctrine of precedent the court’s operation influences the

future legal meaning of the enactment by producing what

may be called sub-rules, which are implied or expressed

in the court’s judgment.”27

28. Subordinate legislation, by its very nature, rests upon the executive’s

understanding of the primary legislation. When a Court is of the

opinion that such an understanding is not in consonance with the

statute, it sets it aside for being ultra-vires to the primary statute.

29. We will now examine if there is anything repugnant to the subject

or context to disapply the mandate of Section 31 of M.P. General

Clauses Act, 1957, to the construction of the 1996 Rules. If the

subject and context guide us in coming to that conclusion, we will

not extend the effect of repeal in Section 10 of the MP General

Clauses Act, 1957 to the repealed Rule 19. On the other hand, if

the subject and context have no bearing on the construction of the

Rule, then we will give effect to Section 10 and apply the repealed

Rule to the liability incurred by the appellant during the license year

2009-10 and allow the imposition of four times the duty as penalty.

30. The 1996 Rules regulate the grant of license for manufacture and

bottling of foreign liquor, procurement of spirit, storage, quality and

control, sale, export, verification etc. Rule 19 provides for penalties

for contravention of any of the Rules or provision of the Act. There

are different penalties for violation of different rules.

27 Halsbury’s Laws, (5th edn, 2018), vol 96, para 694

684 [2024] 4 S.C.R.

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31. The regulatory process requires the Government to deal with the

problem of diversion and unlawful sale of foreign liquor and also

provide an appropriate penalty and punishment. The process of

identifying a crime and prescribing an appropriate punishment is

a complex and delicate subject that the State has to handle while

making rules and enforcing them. The gravity of the offence, its

impact on society and human vulnerability are taken into account to

provide the required measure of deterrence and reform. Day to day

working of the Rules, reposing their effectiveness, ineffectiveness,

deficiency of deterrence, disproportionate penalty having a chilling

effect on genuine businesses, are some routine factors which require

the executive to make necessary amendments to the rules. In this

context, depending on the nature of offence, the proportionate penalty

is required to be modulated from time to time. In light of this, we can

appreciate that the felt need of the State to amend and substitute

Rule 19 which provided a higher penalty at four times the duty, with

a simple penalty not exceeding the duty payable.

32. If the amendment by way of a substitution in 2011 is intended to reduce

the quantum of penalty for better administration and regulation of

foreign liquor, there is no justification to ignore the subject and context

of the amendment and permit the State to recover the penalty as per

the unamended Rule. The subject of administration of liquor requires

close monitoring and the amendment must be seen in this context of

bringing about good governance and effective management. Seen

in this context, the principle of Section 10 of MP General Clauses

Act, 1957, relating continuation of a repealed provision to rights and

liabilities that accrued during the subsistence of the Rule does not

subserve the purpose and object of the amendment.

33. It is also submitted on behalf of the State that the substituted Rule

cannot be given retrospective effect. We are not in agreement with

this submission either. It is wrong to assume that the substituted

Rule is given retrospective effect if its benefits are made available

to pending proceedings or to those that have commenced after the

substitution. Rule 19 which was substituted on 29.03.2011 is made

applicable to proceedings that have commenced with the issuance of

the demand notice in November, 2011. The Rule operates retroactively

and thus saves it from arbitrarily classifying the offenders into two

categories with no purpose to subserve.

[2024] 4 S.C.R. 685

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

34. The single Judge as well as the Division Bench have adopted two

different approaches and we have not agreed with either of them.

The single Judge was of the view that the amendment by way of

substitution has the effect of repealing the law which existed as

on the date of repeal. We have already explained the limitation

in this approach. The Division Bench on the other hand, held that

levy of penalty is substantive law, and as such, it cannot operate

retrospectively. This again is a wrong approach. The substituted

penalty only mollifies the rigour of the law by reducing the penalty

from four times the duty to value of the duty. Therefore, the bar of

Article 20(1)28 of imposing a penalty greater than the one in force at

the time of the commission of the offence has no application. While

rejecting the reasoning of the single Judge as well as the Division

Bench, we seek to underscore the importance of a simple and plain

understanding of laws and its processes, keeping in mind the purpose

and object for which they seek to govern and regulate us.

35. For the reasons stated above, we allow the appeals and set aside

the judgment of the Division Bench of the High Court in Writ Appeals

Nos. 425/2016, 6/2017, 7/2017, 8/2017, 9/2017, 10/2017, 11/2017,

12/2017, 13/2017, 14/2017, 15/2017, 16/2017, 17/2017, 19/2017,

20/2017, 21/2017, 22/2017, 23/2017, 24/2017, 25/2017, 26/2017,

27/2017, 28/2017, 29/2017, 30/2017, 31/2017, 32/2017, 33/2017,

34/2017, 35/2017, 36/2017, 37/2017, 38/2017, 39/2017, 40/2017,

41/2017, 42/2017 and 100/2017 dated 29.06.2017. We further hold

that the penalty to be imposed on the appellants will be on the basis

of Rule 19 as substituted on 29.03.2011. There shall be no order

as to costs.

Headnotes prepared by: Divya Pandey Result of the case:

Appeals allowed.

28 Rattan Lal v. State of Punjab [1964] 7 SCR 676 : 1964 SCC OnLine SC 40; Basheer v. State of Kerala,

[2004] 2 SCR 224 : (2004) 3 SCC 609; Nemi Chand v. State of Rajasthan, (2018) 17 SCC 448; Trilok

Chand v. State of Himachal Pradesh, (2020) 10 SCC 763; M/s. A.K. Sarkar & Co. & Anr. v. The State of

West Bengal & Ors. [2024] 3 SCR 356 : 2024 SCC OnLine SC 248