CIVIL APPEAL NO. 50 OF 2015 (arising out of SLP(C) No.1707 of 2014) Union of India Through Secretary & Ors. ... APPELLANT VERSUS Anju Jain & Anr. ... RESPONDENTS

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO. 50 OF 2015
                   (arising out of SLP(C) No.1707 of 2014)

Union of India Through Secretary & Ors.      ... APPELLANT

                                   VERSUS
Anju Jain & Anr.                        ... RESPONDENTS

                               J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

      Leave granted.

2.    The appellants have preferred this  appeal  against  order  dated  1st
August, 2013 passed by the High Court of Delhi at  New  Delhi  in  W.P.  (C)
No.2736 of 2013.  By the impugned order, the High Court affirmed  the  order
dated 17th March,  2012  passed  by  the  Central  Administrative  Tribunal,
Principal Bench (hereinafter referred to as, 'the CAT')  and  dismissed  the
writ petition preferred by the appellants herein.

3.    The factual matrix of the case is as under:

      The case of the Respondent Nos. 1 and 2 is that  they  were  initially
appointed  as  Junior  Machine  Operators(JMO)/Key  Punch  Operators  w.e.f.
05.05.1987 and 19.05.1987 respectively on temporary basis in the  pay  scale
of Rs.950-20-1150-EB-25-1500.  Later on,  their  services  were  regularized
w.e.f. 19.05.1989. Subsequently, on  the  recommendations  of  the  Economic
Reform Commission and  the  Staff  Inspection  Unit,  the  posts  of  Junior
Machine Operator, Senior Machine Operator and Comptometer  Operator  in  the
office of appellant no.2 were abolished w.e.f. 27.07.1995.  However, on  the
request of the respondents, their services were adjusted against the  vacant
posts of  Computor(feeder)  which  was  a  promotional  post  but  with  the
condition that the respondents  will  draw  only  the  salary  and  pay  and
allowances as admissible to the posts of Junior Machine Operator which  they
were holding prior to  27.07.1995.   Later  on,  respondents  were  adjusted
against the vacant post of Computor  by  way  of  ad  hoc  promotion  w.e.f.
04.11.1997 in the pay scale of Rs.4000-100-6000. On 18.05.1999, at the  time
of granting First Financial Upgradation under ACP Scheme,  the  pay  of  the
respondents was re-fixed in the same scale of  Rs.4000-100-6000,  which  was
the scale they were already granted.

In  the  meantime,  consequent  upon  the  introduction  of  the  Scheme  of
rationalization of pay scales for  Electronic  Data  Processing  cadre,  the
cadre was restructured and at the entry  level  Data  Entry  Operator  (DEO)
Grade A and above that the post of Data Entry Operator (DEO) Grade  B,  etc.
were created. Accordingly, the post of Junior Machine Operator in  the  pre-
revised scale of Rs.950-1500 was re-designated as DEO,  Grade  `A'  and  was
granted the scale of pay of Rs.1150-1500 w.e.f. 01.01.1986.  Similarly,  the
post of Computor in the pre-revised scale of Rs.1200-2040 was  re-designated
as DEO, Grade 'B' in  the  scale  of  pay  of  Rs.1350-2200  effective  from
01.01.1986.

It appears that inspite of re-designation of  the  post  of  Junior  Machine
Operator as Data Entry Operator Grade 'A' the respondent  nos.1 and  2  were
not granted scale of pay of Rs.1150-1500 with  effect  from  their  date  of
initial appointment.

4.    Being aggrieved respondent nos.1 and 2 preferred O.A. No.3690 of  2011
before the CAT for re-fixation of their pay in  the  scale  of  Rs.1150-1500
w.e.f. 05.05.1987 and  19.05.1987  respectively  i.e.  from  the  date  they
joined as Junior Machine Operators.

5.    The CAT vide order dated 17th March, 2012 allowed the application  and
set aside the order passed by the  authorities  with  following  observation
and direction:

"5.   We have heard the learned counsel for the parties and  considered  the
averments made by them. We have also perused the  various  judgments  relied
upon by the learned counsel for the applicants. In our considered view,  the
submission of the respondents does not have any merit. Admittedly, both  the
applicants were initially appointed to  the  post  of  JMO  which  has  been
identified as an EDP post and reclassified as  Data  Entry  Operator,  Grade
'A'. On having been declared surplus, they were adjusted  against  the  post
of Computor which is another identified EDP post which was  reclassified  as
Data  Entry  Operator,  Grade  'B'.  Therefore,  the   submission   of   the
respondents that there was difference between  the  posts  occupied  by  the
applicants and other Data Entry Operators is merely a technical one with  no
consequence and, therefore, it is rejected.  Consequently, we hold that  the
applicants shall be treated as Data Entry Operators Grade 'A' in  the  scale
of pay of Rs.1150-1500 (pre-revised) with all  consequential  benefits  such
as re-fixation of their pay, upto date arrears of pay  and  allowances  from
the respective dates of their appointments i.e. 05.05.1987  and  19.05.1987.
They shall also issue necessary orders in this regard, within  a  period  of
two months from the date of receipt of copy of this order.  There  shall  be
no order as to costs."

6.    Aggrieved by the aforesaid order, the appellants filed W.P.C)  No.4003
of 2012 before this Court.  However, the same  was  dismissed  as  withdrawn
with liberty to file a review petition before  the  CAT  seeking  review  of
order dated 17th March, 2012.  The Review Application being R.A.  No.260  of
2012 was dismissed by the CAT on 15th February, 2013.

7.    In view of the aforesaid fact, another Writ Petition No.2736  of  2013
was preferred by the appellants before the High Court  of  Delhi  which  was
rejected by the High Court by impugned order dated 1st August, 2013  with  a
direction to the appellants that those who were working  as  Junior  Machine
Operators have to be treated as Data Entry Operators Grade 'A' in the  scale
of Rs.1150-1500 and shall be given subsequent replacement of  scale  of  pay
Rs.4000-6000 with benefit from the  date  of  their  appointment  as  Junior
Machine Operators.

8.    Aggrieved by the aforesaid order, the appellants  have  preferred  the
present appeal before this Court.

9.     The  learned  counsel  for  the  respondents   contented   that   the
respondents were initially appointed as  Junior  Machine  Operators  and  on
being declared surplus they were adjusted  against  the  posts  of  Computor
limiting their pay scale to that of Junior Machine  Operators.   Both  those
posts were identified as Electronic  Data  Processing  posts.  Hence,  their
case is fully covered by the decision of the Tribunal  dated  31.07.2000  in
OA No. 2639/1999 titled Babu Lal & Ors. v. Union of India & Ors. wherein  it
was held that the DEOs/DPAs covered under MOF (DOE)  O.M.  dated  11.09.1989
and hence they are entitled to re-fixation of their pay  in  the  respective
scales with effect from their initial date of appointment.
10.   The learned counsel for the appellants has contended  that  the  cases
of the respondents are not exactly similar to those of the O.As relied  upon
by the respondents. According to them,  even  though  the  respondents  have
been initially appointed w.e.f. 05.05.1987 and 19.05.1987 as Junior  Machine
Operators, the said posts have been abolished  w.e.f.  27.07.1995  and  they
were adjusted against the post of Computor on  their  request,     they  are
not entitled to refixation of their pay  with  effect  from  their  date  of
initial appointment.

11.   We have considered the rival contention raised by the learned  counsel
for the parties and have perused the record.
12.   The question relating to rationalisation of pay scales of  Electronics
Data  Processing  posts  in  different  departments  of  Ministries  of  the
Government of India was noticed and considered by this Court in  'Secretary,
Department of Personnel, Public Grievances & Pension  &  Anr.  Vs.  T.V.L.N.
Mallikarjuna Rao',  C.A.No.10862  of  2014  etc.  etc.  This  Court  by  its
judgment dated 9th December, 2014  in  the  said  case  noticed  the  Office
Memorandum No. F.7(1)/IC/86(44) dated 11th September,  1989  issued  by  the
Government of India, Ministry of Finance, Department of Expenditure  whereby
on the recommendation of the  Fourth  Central  Pay  Commission  and  further
recommendation made by  the  Committee  constituted  by  the  Government  of
India, pay scale of Electronic  Data  Processing  posts  likewise  Key-Punch
Operator,  Punch  Verifying  Operator,   Planning   Assistant,   etc.   were
rationalized. The relevant portion of the said office  memorandum  reads  as
follows:

                            "No.F.7(1)/IC/86(44)
                             Government of India
                             Ministry of Finance
                          Department of Expenditure
                             Implementation Cell

                                              New Delhi, dated 11th Sept: 89

                              OFFICE MEMORANDUM

Sub:  Rationalisation of pay scales of Electronic Data
     Processing posts:
      The undersigned is directed to refer to the recommendations of  Fourth
Central Pay Commission contained in paragraph 11.45 of  the  Report  wherein
it was suggested that  the  department  of  Electronic  should  examine  and
suggest reorganisation of existing  Electronic  Data  Processing  posts  and
prescribe uniform pay scales  and  designations  in  consultation  with  the
Department of Personnel. In pursuance of above suggestion, a  Committee  had
been set up by Department of Electronics in November,  1986.  After  careful
consideration of the recommendations made by this Committee,  Government  of
India has decided to introduce following pay structure for  Electronic  Data
Processing posts:-

|S. No.    |Designation of   |Pay scale     |                         |
|          |post             |              |                         |
|1.        |Data Entry       |Rs.1150-1500  |This will be entry Grade |
|          |Operator Grade   |              |for Higher Secondary     |
|          |'A'              |              |with                     |
|          |                 |              |knowledge of Data Entry  |
|          |                 |              |work.                    |
|2.        |Data Entry       |Rs.1350-2200  |This will be entry grade |
|          |Operator Grade   |              |for graduate with        |
|          |'B'              |              |knowledge of Data Entry  |
|          |                 |              |work of promotional Grade|
|          |                 |              |for Data Entry Operator  |
|          |                 |              |Grade 'A'                |
|3.        |Data Entry       |Rs.1400-2300  |Promotional Grade        |
|          |Operator Grade   |              |                         |
|          |'C'              |              |                         |
|4.        |Data Entry       |Rs.1600-2660  |Promotional Grade        |
|          |Operator Grade   |              |                         |
|          |'D'              |              |                         |
|5.        |Data Entry       |Rs.2000-3500  |Promotional Grade        |
|          |Operator Grade   |              |                         |
|          |'E'              |              |                         |
|Data Processing/Programming Staff                                     |
|1.        |Data Processing  |Rs.1600-2260  |Entry Grade for Graduates|
|          |Assistant Grade  |              |with                     |
|          |'A'              |              |Diploma/certificate in   |
|          |                 |              |Computer                 |
|          |                 |              |Applications.            |
|2.        |Data Processing  |Rs.2000-3200  |Promotional Grade        |
|          |Assistant Grade  |              |                         |
|          |'B'              |              |                         |
|3.        |Programmer       |Rs.2375-3500  |Direct Entry for holders |
|          |                 |              |of Degree in Engineering |
|          |                 |              |or post-graduation in    |
|          |                 |              |Science/Maths etc. or    |
|          |                 |              |post graduation in       |
|          |                 |              |Computer                 |
|          |                 |              |Application              |
|          |                 |              |Or                       |
|          |                 |              |By promotion from Data   |
|          |                 |              |Processing Assistant     |
|          |                 |              |Grade 'B'                |
|4.        |Senior Programmer|Rs.3000-4500  |Promotional Grade        |


2.    All  Ministers/Department  having  Electronic  Data  Processing  posts
under their administrative control will review the designation,  pay  scales
and recruitment  qualification  of  their  posts  and  revise  the  same  in
consultation with their Financial Advisor to the  extent  necessary  as  per
pay structure indicated in para 1 above. Where  it  is  found  necessary  to
revise the pay scale  of  existing  post  notification  will  be  issued  by
concerned Ministry/Department and copy of the notification  and  order  will
be sent to Implementation Cell and Department of  Expenditure.  The  revised
pay scales will be operative from the  date  of  issue  of  notification  by
concerned Ministry/Department.

If as a result of above review, pay scale of any  post  undergoes  a  change
the pay of existing incumbents will be fixed  as  per  fundamental  Rule  23
read with FR 22(a)(ii).

The review suggested in para 2 above will be made  only  with  reference  to
existing Electronic Data Processing posts and it will not  be  necessary  to
create all the grades in all Ministries/Departments, as it  will  depend  on
requirements of user Department. If Ministry/Department proposes  to  create
any grade which is not existing at present it will be done with approval  of
financial advisors and subject to procedures laid down for the purpose.

The qualifications etc. indicated against each grade in  para  1  above  are
only illustrative and Departments/Ministries will carry out  the  review  of
existing  EDP  posts  in  accordance  with  recruitment  rules  as   already
prescribed by them. To ensure uniformity in regard to Recruitment Rules  for
the EDP posts, Department of Personnel &  Training  is  being  requested  to
devise   model   Recruitment    Rules    which    can    be    adopted    by
Ministry/Department."


13.    It  was  further  noticed  that  in  view   of   the   aforesaid   OM
No.F.7(1)/IC/86(44) dated 11th September, 1989, Department of Personnel  and
Training, Ministry of Personnel, Public Grievance & Pensions, Government  of
India  by  O.M.No.AB  14017/75/89-Estt.(RR)  dated   13th   February,   1990
forwarded a copy of the Model Recruitment Rules for  various  categories  of
posts in the Electronic Data  Processing  Discipline.  Further,  this  Court
also noticed the Electronic Data Processing Discipline  (Group  C  Technical
Posts) Recruitment Rules, 1992 issued by the President of India in  exercise
of powers conferred by the proviso to Article 309  of  the  Constitution  of
India, from Department  of  Revenue,  Government  of  India,  Department  of
Personnel of Training,  Ministry  of  Personnel,  etc.  Having  noticed  the
aforesaid guidelines  and  Rules  in  Secretary,  Department  of  Personnel,
Public Grievances & Pension & Anr. Vs. T.V.L.N. Mallikarjuna Rao this  Court
observed as follows:

"8.   From the Office Memorandum and Rules, as noticed above, the  following
facts emerge:

(i)   In view of  the  recommendations  of  Fourth  Central  Pay  Commission
(paragraph 11.45 of the Report),  the  Government  of  India  constituted  a
Committee  to  suggest  the  reorganisation  of   existing   department   of
Electronic Data Processing posts such as Data Entry Operator which  were  in
the scale of pay of Rs.950-1150.

(ii)  By Office Memorandum dated  11th  September,  1989,  pursuant  to  the
aforesaid suggestions the Government  of  India  decided  to  introduce  pay
structure for Electronic Data Processing posts with  separate  nomenclatures
that is: (i)Data Entry Operator Grade 'A' - Rs.1150-1500  with  entry  Grade
for Higher Secondary with knowledge of Data  Entry  work;  (ii)  Data  Entry
Operator Grade 'B' - is promotional post of Data Entry Operator  Grade  'A',
similarly Data Entry Operator Grade 'C' is  promotion  post  of  Data  Entry
Operator Grade 'B' and Data Entry Operator Grade 'D' is  promotion  post  of
Data Entry  Operator  Grade  'C'  and  Data  Entry  Operator  Grade  'E'  is
promotional post of Data Entry Operator Grade 'D'.

      For such promotion,  the  person  is  not  only  and  required  to  be
qualified but must fulfill experience  condition  in  the  lower  grade  for
promotion to the higher post."


14.   In the present case the respondents were appointed as  Junior  Machine
Operator/Key Punch Operator w.e.f. 05.05.1987  and  19.05.1987  respectively
on  temporary  basis  in  the  pay   scale   of   Rs.950-20-1150-EB-25-1500.
Subsequently, their services were regularised w.e.f. 19.05.1989. In view  of
the Government of India O.M. dated 11th September, 1989 the posts of  Junior
Machine Operators/Key Punch  Operators  were  re-designated  as  Data  Entry
Operator Grade 'B' in the  pay  scale  of  Rs.1150-1500  w.e.f.  01.01.1986.
Therefore, respondent nos.1 and 2 became entitled to receive salary  in  the
pay  scale  of  Rs.1150-1500  with  effect  from  their  date   of   initial
appointment i.e. 05.05.1987 and 19.05.1987 respectively.

15.   Admittedly, the posts of Junior Machine Operator, etc. were  abolished
and, therefore, they were adjusted to  the  post  of  Computor.  Though  the
respondents were adjusted against the posts  of  Computor  w.e.f.04.11.1997,
the adjustment was so made with a condition that they have been drawing  the
salary and pay and allowances as admissible to the posts of  Junior  Machine
Operator which they were holding prior to 27th July,  1995.  Therefore,  the
respondents though hold the posts of Computor they were entitled to the  pay
scale of Rs.1150-1500 w.e.f. 27.07.1995.

16.   The respondents have taken plea  that  their  adjustment  against  the
vacant post of Computor by way of ad hoc promotion w.e.f. 04.11.1997 in  the
pay scale of Rs.4000-100-6000 but there was nothing  on  record  to  suggest
that they were granted ad hoc  promotion  w.e.f.  04.11.1997.  Further,  the
designation of post of Computor was changed to  Data  Entry  Operator  Grade
'B'.  In absence of any order of promotion no finding can be  given  whether
the respondents were entitled to next higher sale of pay.  However, if  they
were entitled for higher  scale  as  per  ACP  scheme  and  granted  by  the
competent authority they will continue to receive the same.

17.   In view of the finding as recorded above, no  interference  is  called
for against the impugned judgment dated 01st  August,  2013  passed  by  the
High Court and the order passed by the Tribunal as the  High  Court  rightly
held that the respondents to be treated as Data Entry Operator Grade 'A'  in
the pay scale of Rs.1150-1500 from the date  of  their  initial  appointment
and subsequent replacement of pay scale of Rs.4000-6000 from  the  date  the
pay scale was so revised.

18.   The appeal is dismissed but there shall be no orders as to costs.

                         .................................................J.
                                (SUDHANSU JYOTI MUKHOPADHAYA)


                         .................................................J.
                                         (PRAFULLA C. PANT)
NEW DELHI;
JANUARY 6, 2015.
-----------------------
8

CRIMINAL APPEAL NO. 14 OF 2015 [ Arising out of SLP (Crl.) No.7067 of 2014] K.K. Kuda ... Appellant versus Chief Enforcement Officer, Enforcement Directorate & Anr ..Respondents

                                        NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
      CRIMINAL APPEAL NO.  14    OF 2015
[ Arising out of  SLP (Crl.) No.7067 of 2014]


K.K.  Kuda                        ...     Appellant

                                   versus

Chief Enforcement Officer,
Enforcement Directorate & Anr   ..Respondents



                               J U D G M E N T


C. NAGAPPAN, J.


Leave granted.


This appeal  is  preferred  against  the  Judgment  and  Final  Order  dated
02.09.2013 passed by the High Court of Delhi in Criminal Miscellaneous  Case
No.5096/2006, whereby the High  Court  dismissed  the  petition  seeking  to
quash the complaint filed under Section 56 of  Foreign  Exchange  Regulation
Act, 1973.

The first respondent herein issued Show Cause Notice dated 21.01.1994  under
Section 51 of FERA, 1973 against ANZ  Grindlays  Bank,  the  Account  Holder
and three bank officials for having credited   Non-convertible  Rupee  Funds
of Rs.1,15,00,000/-   (Rupees One Crore and Fifteen Lakhs only)  during  the
period August to December,  1991   received  from  Moscow,   into  the  Non-
Resident (External) Account of Dr. P.K. Ramakrishnan  in   contravention  of
Section 6(4), 6(5)   read with Section 49 of  FERA,  alleging  that  it  had
taken place  with  the  consent,  connivance  of  and  attributable  to  the
negligence on the part of the said Officials.   However,   by  letter  dated
10.7.2001 addressed to the appellant, the respondent  ordered  that  charges
relating to 'consent' and 'connivance' shall stand  deleted  from  the  Show
Cause Notice dated 21.01.1994.

In  the  meanwhile,  Opportunity  Notice,  dated  12.5.2002,   followed   by
Complaint dated 29.5.2002, was filed under Section 56 of FERA, 1973  against
the persons abovenamed   for having  credited  Non-convertible  Rupee  Funds
into the Non-Resident (External) Account of the person  concerned,  alleging
contravention of Section 6(4), 6(5) read with S.49 of  FERA    having  taken
place with the consent, connivance of and  attributable  to  the  negligence
of the Officials and the Additional  Chief  Metropolitan  Magistrate,    New
Delhi, took cognizance of the complaint for the offence under Section 56  of
FERA on 29.5.2002 itself and issued summons  to  the  accused.   Challenging
the same, the appellant herein and other Officials sought for  quashing  the
complaint proceedings in their  petition  in  Crl.M.C.No.5096/2006,  on  the
file  of  the  High  Court,  Delhi.   While  the  matter  stood  thus,   the
adjudicating authority passed the final Order dated 14.5.2010  holding  that
the Officials of the Bank have not consented or connived in the  performance
of the official duties and they were  negligent.   The  High  Court  by  the
impugned order held that the prosecution of the  accused  persons  shall  be
confined to the negligence on their part and not for they  having  consented
or connived in the commission of the said offence.  The said order is  under
challenge before us.

Mr. C.A.Sundaram,  learned  Senior  Counsel  appearing  for  the  appellant,
strenuously contended that the allegations of  consent  and  connivance  had
been dropped by the respondent vide  letter  dated  10.7.2001,  despite  so,
complaint  was  lodged   on  the  allegations  of  consent,  connivance  and
negligence on the part of the officials of the Bank  suppressing  the  facts
and the respondent is guilty of suppressio veri and suppressio facto and  on
this ground itself, the complaint is  liable  to  be  quashed.   It  is  his
further contention  that  the  complaint  pertains  to  the  allegations  of
consent, connivance and negligence on the part of the officials  for  having
credited Non-convertible Rupee Funds of the  Account  Holder  concerned  and
the cause of action disclosed therein is composite and  inseparable  and  it
cannot be quashed in part and    continuance of  the  complaint  proceedings
on the allegation of negligence would tantamount to abuse of the process  of
law.  He also  contended  that  taking  advantage  of  Sunset  clause  under
Section 49 of Foreign Exchange Management Act, 1999, without disclosing  the
issuance  of  reply  by  the  appellant  to  the  Opportunity  Notice,   the
respondent in  an  arbitrary  and  mechanical  manner  filed  the  complaint
without enclosing a single original document  and  in  the  absence  of  any
material, the learned Magistrate could not have applied his mind  and  taken
cognizance and summoning order is bad in law.

Per  contra,  Mr.  V.Shekhar,  learned  Senior  Counsel  appearing  for  the
respondents, contended that the complaint consists of three  components  and
even eschewing the allegation of consent  and  connivance,  the  prosecution
can be continued on the allegation of negligence and the impugned  order  is
sustainable.

We carefully considered the rival submissions and perused the documents.

The crediting of Non-Convertible Rupee Funds in the Non-Resident  (External)
Account of  Dr.  P.K.Ramakrishnan  happened  during  the  period  August  to
December, 1991.    Three officials of ANZ Grindlays Bank  were  involved  in
it and Show Cause Notice was issued by Respondent No.1 on 21.1.1994  to  the
Bank as well as the Officials for contravention of Section 6(4),  6(5)  read
with Section 49 of FERA, alleging that it had taken place with the  consent,
connivance of and  attributable  to  the  negligence  on  the  part  of  the
Officials.    It is true that  the  respondent  by  letter  dated  10.7.2001
ordered that the charges relating to 'consent' and 'connivance' shall  stand
deleted from the Show  Cause  Notice.   Though  FEMA  came  into  force   on
1.6.2000, Sunset clause under Section  49  of  the  said  Act  provided  for
filing of complaints under the FERA, 1973 till 31.5.2002.  Taking  advantage
of it, the Respondent No.1  issued  Opportunity  Notice  to  all  the  three
officials  on  12.5.2002  and  lodged  the  complaint  on  29.5.2002.    The
Additional Chief Metropolitan Magistrate, New Delhi, on the  same  day  took
cognizance of the complaint for the offence under Section  56  of  FERA  and
issued summons.

In spite of having dropped the allegations of  'consent'  and  'connivance',
the respondent in their complaint levelled  allegations  of  all  the  three
components, namely, consent, connivance and negligence.  The  contention  of
the appellant that the cognizance was taken on irrelevant consideration,  is
to be countenanced.   There was suppression and also  material  omission  in
non-mentioning of reply sent by the appellant to the Opportunity Notice,  in
the complaint.  Further, to substantiate the  averments  in  the  complaint,
not even a single original document was enclosed.  It is not  known  as  to,
on what material the Additional Chief Metropolitan  Magistrate  applied  his
mind,  while  taking  cognizance  of  the  statutory  offence.   Though  the
allegation of negligence can be independently looked into,  considering  the
standard of proof in criminal prosecution,    we are of the  view  that,  in
the present case, the continuance of prosecution against  the  appellant  is
not tenable in law and the proceedings are liable to be quashed.

The appeal  is  allowed  and  the  impugned  order  is  set  aside  and  the
proceedings  in  Criminal  Complaint  No.704/2002,  on  the  file   of   the
Additional  Chief  Metropolitan  Magistrate,  New  Delhi,  insofar  as   the
appellant is concerned are quashed.


                                              ............................J.
                                                           (V. Gopala Gowda)


                                              ............................J.
                                                                (C.Nagappan)


New Delhi;
January 06, 2015

CRIMINAL APPEAL NOS.493-495 OF 2009 Inder Singh & Ors. .....Appellants Versus State of Rajasthan .....Respondent

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NOS.493-495 OF 2009

Inder Singh & Ors.                                       .....Appellants

      Versus

State of Rajasthan                                       .....Respondent

                                   W I T H

 Criminal Appeal Nos.1238 of 2009; 1239 of 2009; 1241 of 2009; 1194 of 2011;
                              and 1892 of 2011.


                               J U D G M E N T


SHIVA KIRTI SINGH, J.

All these  eight  appeals  arise  out  of  one  criminal  case  bearing  FIR
No.188/01 dated 10.09.2001  of  P.S.  Sunail,  Distt.  Jhalwada  (Rajasthan)
lodged by informant Amar Singh (P.W.15) against 29 named co-villagers.   All
the 29 accused persons were chargesheeted by the police.  After trial,  five
accused were acquitted and the rest 24 were convicted for various  offences.
 Five appeals preferred  by  22  convicts  were  disposed  of  by  a  common
judgment of the High Court dated 29.05.2008 which is impugned in 7  criminal
appeals - 6 of them lodged in 2009 and Criminal Appeal No.1892  of  2011  by
convict Kalu Lal lodged in 2011.  Two of the  convicts,  namely,  Ram  Singh
and Kesar Singh (accused nos.24 and  4  respectively)  approached  the  High
Court belatedly through jail appeals which  were  disposed  of  by  judgment
dated 10.03.2011 which is impugned  in  Criminal  Appeal  No.1194  of  2011.
Since all the matters arise out of one criminal case, they have  been  heard
together and are being disposed of by this common judgment.
Before  noticing  the  prosecution  case  and  the  main  defence   of   the
appellants, it is noted that out of  29  accused  who  were  put  on  trial,
accused nos.12, 15, 16, 22  and  23  (as  per  number  in  the  trial  court
judgment) were acquitted by the  trial  court.   The  High  Court  acquitted
accused no.17 whereas accused no.19 died during the pendency of  his  appeal
before the High Court.  The records show that accused no.8,  appellant  Maan
Singh has died during the pendency of his appeal before  this  Court.   Thus
presently there are 21 appellants who have been convicted of offences  under
Sections 302/149, 307/149, 147 and 148 of the IPC.  Accused nos.1, 2  and  3
have also been convicted for offences under Section  27  of  the  Arms  Act,
1959.  All have been awarded life imprisonment along  with  other  sentences
which are to run concurrently.
Before adverting to the prosecution case, it is also  useful  to  note  that
the occurrence is alleged to have taken place  on  10th  September  2001  at
06:45 p.m. in Village Dhodi, at a distance of 18  kms.  from  the  concerned
police station.  The statement of  informant  Ram  Singh  (P.W.15)  who  was
seriously injured, was recorded on the same date at 09:30 p.m.  in  presence
of his uncle Chen Singh (P.W.17), by SHO at Camp Dhodi and  formal  FIR  was
recorded on same date at 10:30 p.m.  The FIR was duly  communicated  to  and
seen by the Addl. Chief Metropolitan Magistrate on 11.09.2001.   There  were
29 accused persons named in the FIR, all residents of  Village  Dhodi.   The
four deceased who died on account of assault in the same occurrence as  well
as the injured informant and material eye witnesses, i.e., P.Ws.12, 14,  15,
17, 19 and 24 also belong to the same village.  The  genealogy  prepared  by
the defence and shown to us,  discloses  that  at  least  accused  no.8-Maan
Singh and his two sons accused nos.5  and  29  belong  to  the  same  larger
family as that of the four deceased and the injured  informant  Amar  Singh.
Accused no.8-Maan Singh happens to be brother of  deceased  no.2-Bapu  Singh
and deceased  no.4-Manohar  Singh  whereas  deceased  no.1-Inder  Singh  and
deceased no.3-Nagu Singh are sons  of  deceased  Manohar  Singh.   Informant
Amar Singh is son of deceased Bapu Singh.  The accused persons named in  the
FIR and chargesheeted by name never challenged their  identification  either
before the police or before  the  Magistrate.   Nor  there  was  any  cross-
examination of the  witnesses  on  the  point  of  identification  when  the
witnesses in their depositions have referred to the accused persons and  the
appellants by their name as well as village relationship.
According to the Parcha Bayan of Amar Singh (P.W.15) he was at his house  at
around 06:45 p.m. of 10.09.2001 and at that  time  he  heard  cries  of  his
cousin Inder Singh (deceased no.1)  from  the  side  of  a  field  known  as
'Patwari ka Khet'.  He came out of the house and saw his  uncle  Maan  Singh
(accused no.8) and 28 other named accused running behind Inder Singh.   They
were armed with sword, gun, country-made pistol, lathi  and  gandasi.   They
all together killed Inder Singh (deceased  no.1).   Then  they  ran  towards
informant (P.W.15) and caused a sword blow at the wrist of his  right  hand.
On his cries, his father Bapu Singh (deceased no.2) came running  to  rescue
the informant.  His uncle Maan Singh fired with his gun due  to  which  Bapu
Singh fell down and died in the khaal in presence of everybody.   His  uncle
Manohar Singh (deceased no.4) and his son Nagu Singh  (deceased  no.3)  also
came running to save them  but  the  accused  persons  assaulted  them  also
leading to their death.  Many persons  of  the  village  were  watching  the
incident.  The accused persons had registered cases of theft of water  motor
against deceased Inder Singh and he had  been  recently  released  from  the
jail custody.  The accused  had  declared  that  since  police  did  not  do
anything, now they would see Inder Singh.  There  was  an  existing  dispute
over land between the informant side and accused Maan Singh  and  for  these
reasons Maan Singh and his associates, armed with weapons had  caused  death
of four persons and had also  caused  injuries  to  the  informant  with  an
intention to kill him.  Informant claimed that  he,  his  uncle  Chen  Singh
(P.W.17), his mother (P.W.16) and his wife could save themselves  by  hiding
in the house.
During trial, 24 witnesses were examined on behalf of  the  prosecution  and
several documents were marked  as  Exhibits  P-1  to  P-149.   Defence  also
examined four witnesses and exhibited 21 documents marked  as  Exhibits  D-1
to D-21.  As noted earlier, after trial the learned  Special  Judge,  SC/ST,
Jhalawar, Rajasthan, vide  judgment  dated  13.02.2004  passed  in  Sessions
Trial No.123 of 2002 (13/2002), convicted 24 out of 29 accused  for  various
offences including offence under Section 302/149 of the IPC  for  which  all
were awarded rigorous imprisonment for life.  The trial court acquitted  the
appellants of charge under Section 120B of the IPC.  The  appeals  preferred
by the appellants before the Rajasthan  High  Court  at  Jaipur  Bench  were
dismissed leading to confirmation of their conviction and sentence.
On behalf of the appellants,  Mr.  Basant,  learned  senior  advocate  first
raised an issue  of  fact  relating  to  identification  of  all  appellants
because none of the material witnesses, i.e., P.Ws 12, 14, 15,  17,  19  and
24 have laid any specific claim in their examination-in-chief that they  can
identify the accused persons/appellants.  The submission  advanced  is  that
due to such lacuna,  the  appellants'  presence  and  participation  in  the
occurrence is not established and hence they deserve acquittal.  We find  no
merit in this contention in the light of salient facts noted  earlier  which
disclose that all the accused  persons/appellants  are  named  in  the  FIR.
They are co-villagers and well known  to  the  witnesses  and  challenge  to
their identification by name etc. was never raised by  the  accused  persons
at any stage of either the investigation or the trial.  The presence of  the
appellants and their identification flows out of the  fact  that  they  were
named in the earliest version of the occurrence disclosed  in  the  FIR  and
have been subsequently named by several of the witnesses in  course  of  the
trial with clear allegation that they were present and participated  in  the
occurrence in one  way  or  the  other  as  an  accused.   In  such  factual
background, the issue relating to identification raised  on  behalf  of  the
appellants is found to be without any substance.
On behalf of the appellants, several other issues of facts were also  raised
with a view to criticize the prosecution case and persuade us to  hold  that
the prosecution has failed to  prove  the  charges  against  the  appellants
beyond reasonable doubts.  The general  criticisms  are  that  the  six  eye
witnesses relied upon are interested and three of them, i.e.,  P.Ws  12,  14
and 24 are minors whose names were not disclosed in the FIR  that  they  had
also witnessed the occurrence.  It was also submitted  that  the  occurrence
took place in open field and was allegedly  witnessed  by  large  number  of
villagers but no  independent  witness,  unrelated  to  the  family  of  the
deceased  persons  has  been  examined  and,  therefore,  prosecution   case
deserves to be rejected.  It was also pointed  out  that  the  investigating
officer  could  not  recover  pellets  from  the  place  of  occurrence  and
ballistic report was not made available to corroborate use of fire  arms  by
some of the accused persons.  Our  attention  was  also  drawn  to  injuries
sustained by some of the accused persons and it  was  contended  by  learned
senior counsel for the appellants that in absence  of  any  explanation  for
the injuries on the side  of  the  accused  persons,  the  prosecution  case
deserves to be rejected.  In  support  of  this  proposition,  reliance  was
placed upon judgments of this Court in the case of Siri  Kishan  &  Ors.  v.
State of Haryana (2009) 12 SCC 757 and in the case of Lakshmi Singh  &  Ors.
v. State of Bihar (1976) 4 SCC 394.
Learned senior counsel also raised a serious  grievance  against  the  trial
court and the High Court judgment on  the  plea  that  they  had  failed  to
analyse the roles played by individual accused persons which,  according  to
learned counsel, was necessary for fastening the charges under  Section  302
and 307 IPC with the  aid  of  Section  149  IPC.   The  substance  of  this
contention was  that  unless  allegations  against  individual  accused  are
considered separately it will not be proper to hold that they were  actually
members of an unlawful assembly.   To  highlight  the  ambit  and  scope  of
Section 149 IPC and related issues, reliance was placed  by  learned  senior
counsel on the following judgments of this Court :
Kuldip Yadav & Ors. v. State of Bihar (2011) 5 SCC 324

Busi Koteswara Rao & Ors. v. State of Andhra Pradesh (2012) 12 SCC 711

Khairuddin & Ors. v. State of West Bengal (2013) 5 SCC 753


Lastly it was contended on behalf of appellants that  considering  the  fact
that all the accused were co-villagers of the witnesses and well known  from
before, the naming of some of the appellants by only few  of  the  witnesses
and not all should have been treated to be a  significant  factor  to  grant
acquittal on the basis of benefit of doubt.  Reliance was  placed  upon  the
judgment of this Court in the  case  of  Masalti  etc.  v.  State  of  Uttar
Pradesh AIR 1965 SC 202 wherein it has been held that no  doubt  trustworthy
evidence of a single witness may be enough to  convict  accused  persons  in
appropriate cases but where  a  criminal  court  is  dealing  with  evidence
pertaining to an offence involving large number of  offenders  and  a  large
number of victims, it is usual to adopt the test of support by two or  three
or more witnesses if they give a consistent account of  the  incident.   The
court approved such  a  test  after  noticing  that  it  may  appear  to  be
mechanical but its use in appropriate cases cannot be treated as  irrational
or unreasonable.  In order to assist this Court to apply such a test in  the
present case,  detailed  notes  and  charts  have  also  been  furnished  to
indicate individual cases of  appellants  in  respect  of  evidence  of  eye
witnesses appearing against them, their weapon and alleged specific role.
On the other hand, learned  counsel  for  the  informant  and  also  learned
counsel for the State have placed reliance upon  judgments  of  trial  court
and the High Court and have submitted that the oral as well  as  documentary
evidence has received due consideration by both the courts and in the  facts
of the case, no interference is required with  the  concurrent  findings  of
guilt recorded against the appellants.  It  was  highlighted  on  behalf  of
prosecution that when large number of accused  persons  had  run  after  the
deceased and indulged in indiscriminate  assault  resulting  into  death  of
four persons in open field  and  serious  injuries  to  the  informant,  the
witnesses cannot be expected to notice, remember and depose  the  individual
acts committed by different accused persons vis--vis the five victims.   It
was pointed out on behalf of  prosecution  that  medical  evidence  and  the
injuries have been correctly noted  by  the  trial  court  which  show  that
firearm injuries were found on as  many  as  three  deceased,  namely,  Nagu
Singh from whose dead body two pellets were recovered, one  from  the  wrist
of the left arm and one from the stomach; deceased Inder  Singh  from  whose
back part of the body 12 pellets were recovered and deceased Bapu Singh  who
was found to have sustained a gun shot injury  on  the  jaw  from  which  66
pellets were taken out along with a  plastic  circular  cap.   Pellets  were
also taken out from the brain.
Learned counsel for the informant and  the  State  also  submitted  that  no
doubt innocent bystanders or witnesses cannot be and should not be  included
in the list of accused as members of unlawful  assembly  and  the  court  is
required to be vigilant and aware of all the facts  showing  involvement  of
the accused persons -  from their conduct prior to as  well  as  during  and
after the occurrence.  Incriminating conduct will vary  from  case  to  case
and can be ascertained only in  the  peculiar  facts  of  each  case  having
regard to, inter alia, nature  of  conduct,  overt  act  and  possession  of
weapons, if any.  For this purpose, according  to  prosecution,  the  courts
below have analysed the ocular evidence in  detail  and  have  also  noticed
recovery of different weapons from the accused persons.  Therefore,  as  per
their  submission,  the   conviction   of   the   appellants   requires   no
interference.
On going through the entire evidence of material witnesses, other  materials
and judgment of the courts below, we find that since the number  of  accused
persons was quite large and they were bold and strong enough to  cause  four
deaths in the open field in presence of large number of persons,  it  cannot
be difficult to understand and appreciate as to  why  independent  witnesses
from the village who might have seen the occurrence, did not prefer to  come
out to support the prosecution.  But that will not take away from the  worth
of deposition of six  eye  witnesses  when  they  have  given  a  consistent
account of the occurrence which was disclosed in a nutshell soon  after  the
occurrence in the FIR lodged by P.W.15  who  was  seriously  and  critically
injured in the same occurrence and whose presence cannot  be  doubted.   If,
per chance, he would have been the sole witness, even then it may have  been
possible for the  courts  below  to  convict  the  accused  persons  on  his
testimony after testing its veracity in the light of his  earlier  statement
contained in the FIR.  In such a factual scenario,  we  find  no  reason  to
doubt the prosecution case if the I.O. failed to recover  pellets  from  the
open field which was the place of occurrence  or  if  he  could  not  obtain
ballistic report.  The  eye  version  account  of  the  occurrence  and  the
medical  evidence  showing  large  number  of  injuries  including   firearm
injuries support each other.  On this issue, the discussion and findings  of
the trial court against the accused persons  is  found  to  have  sufficient
merit.
The criticism that some of the accused had sustained injuries for which  the
prosecution has not offered any explanation has  rightly  been  rejected  by
the trial court because there is no counter version  or  even  a  suggestion
disclosing that any of  the  accused  had  received  injuries  in  the  same
occurrence and at the same place.  None of the persons allegedly injured  on
the side of the defence have lodged any  case  disclosing  where  and  under
what circumstances they sustained the injuries.  In the facts of  the  case,
in absence of any counter version and any plea of self-defence, it would  be
hazardous to presume at  the  instance  of  the  defence  that  the  accused
persons sustained the injuries in course of same occurrence and at the  same
place.  Only if these two ingredients were established,  the  defence  would
have been entitled to seek an explanation from the  prosecution  in  respect
of some injuries on three of  the  accused  persons.   Their  injuries  were
neither fatal nor they caused any threat to life and that also  reduces  the
burden upon the prosecution to explain injuries on the accused.  In view  of
above discussion, we are of the view that judgments  in  the  case  of  Siri
Kishan (supra) and Lakshmi Singh (supra) do not  help  the  appellants.   In
paragraph 12 of the judgment in the case of Lakshmi Singh (supra) the  court
had found that in the circumstances of that case there  could  be  no  doubt
that the accused must have received  grievous  injuries  in  course  of  the
assault.  In the case at  hand,  the  facts  are  different  and  hence  the
prosecution version cannot  be  disbelieved  on  account  of  some  injuries
allegedly sustained by some of the  accused,  namely,  Maan  Singh  (accused
no.8); Ram Prasad (accused no.28); and Bahadur Singh (accused no.29).
The main issue that now requires consideration is whether the  courts  below
have rightly applied Section 149 of  the  IPC  against  the  appellants  for
convicting them for the death of four persons and for murderous  assault  on
the informant.  The principle of law governing application  of  Section  149
IPC has been explained by this  Court  in  many  judgments  including  those
cited by learned senior counsel for the appellants.  In the case  of  Kuldip
Yadav (supra), the law was stated in paragraph 39 in the following words :
"39.  It is not the intention of the legislature in enacting Section 149  to
render every member of unlawful assembly  liable  to  punishment  for  every
offence committed by one or more  of  its  members.   In  order  to  attract
Section 149, it must be  shown  that  the  incriminating  act  was  done  to
accomplish the common object of unlawful assembly and it must be within  the
knowledge of other members as one likely to be committed in  prosecution  of
the common object.  If the members of the assembly knew  or  were  aware  of
the likelihood of a particular offence being  committed  in  prosecution  of
the common object, they would be liable  for  the  same  under  Section  149
IPC."

In the case of Busi Koteswara Rao (supra) the facts  showed  involvement  of
large number of persons and, therefore, while approving the  view  taken  in
the case of Masalti (supra) this Court cautioned  in  paragraph  11  of  the
judgment that the courts should be cautious in cases  of  arson  and  murder
where the number of accused is large, to rely  upon  the  testimony  of  the
witnesses speaking generally without specific reference to  the  accused  or
the specific role played by them.
Reliance placed by appellants on the judgment in  the  case  of   Khairuddin
(supra) is misplaced.  In that case, as paragraphs 12, 13 and  14  disclose,
overt act of assault  was  found  proved  against  five  appellants  grouped
together and hence  their  conviction  was  affirmed  whereas  against  some
others included in a  different  group  it  was  found  that  there  was  no
evidence showing that they were either present on the spot  or  participated
in the occurrence.  In the  case  at  hand,  the  finding  on  appraisal  of
evidence is different.
The ingredients of Section 149 IPC require presence of an unlawful  assembly
which is defined under Section 141 of the IPC as  an  assembly  of  five  or
more persons, if the common object of the persons  composing  that  assembly
is any of the five objects fully enunciated in  Section  141  of  IPC.   The
third object is - "to commit any mischief  or  criminal  trespass  or  other
offence."  The explanation to Section 141 clarifies that an  assembly  which
was not unlawful when it assembled,  may  subsequently  become  an  unlawful
assembly.  As per Section 149,  even  if  any  one  member  of  an  unlawful
assembly commits an offence in prosecution of  the  common  object  of  that
assembly, every person who at the time of committing of that offence  was  a
member of the unlawful assembly is guilty of that offence.
Since it was vehemently contended that courts below have not  applied  their
mind as to whether the appellants were members of an  unlawful  assembly  or
not, it is our duty to remind ourselves of the law on the  subject.   It  is
settled law, as held in the case of Roy Fernandes v. State  of  Goa  &  Ors.
(2012) 3 SCC 221, that to determine the  existence  of  common  object,  the
court is required to see the circumstances in which the incident  had  taken
place, the conduct of members of unlawful assembly as well as the weapon  of
offence they carried or used on the spot.  It is also  established  law,  as
held in the case of Ramchandran & Ors. v. State of Kerala (2011) 9 SCC  257,
that common object may form on spur of the moment.  Prior concert by way  of
meeting of members of unlawful assembly is not necessary.
In that view of settled law, the facts of the present  case  as  alleged  in
the FIR and as proved in the court leave no manner of doubt that  the  group
of persons who chased deceased no.1-Inder Singh and  caused  his  death  and
thereafter chased,  surrounded  and  caused  death  of  three  more  persons
besides causing  grievous  injuries  to  the  informant-Amar  Singh  was  an
assembly of five or more persons rightfully deserving to  be  designated  as
an unlawful assembly because by its action it showed that its common  object
was to commit offence.  The subsequent acts clearly show that  the  unlawful
assembly carried out its common object  of  committing  serious  offence  of
murder of four persons and grievous injuries to the informant.
This Court, therefore, finds that the courts below  committed  no  error  in
applying Section 149 of the IPC and convicting the members of  the  unlawful
assembly for offences under Sections 302 and 307 of the IPC  (with  the  aid
of Section 149 IPC).  Some argument was advanced on there being lack of  any
clear motive but that is not at all necessary or material when the  offences
have been proved by clear and cogent evidence including eye-witnesses.
So far as the principle of caution as enunciated  in  the  case  of  Masalti
(supra) is concerned, we find ourselves in  agreement  with  the  submission
advanced by learned senior counsel Mr. Basant that in the peculiar facts  of
the case, the courts below should  have  further  decided  as  to  how  much
corroboration was required for accepting the presence and  participation  of
individual accused person.  The informant had though claimed presence of  29
persons but subsequently five were acquitted by the trial court and one  was
acquitted by the High Court.  On this issue, on  going  through  the  charts
disclosing  number  of  witnesses  who  have  deposed   against   individual
appellants to show their presence, participation, weapon and overt  act,  if
any,  we  find  that  the  test  approved  in  Masalti's  case  (supra)  and
subsequently followed in several other cases  including  the  case  of  Busi
Koteswara Rao (supra) needs to be  followed  in  this  case  also.   In  the
latter judgment in paragraph 13 the law on the subject  has  been  expounded
in very clear terms :

"13. It is clear that when a  criminal  court  has  to  deal  with  evidence
pertaining to the commission of an  offence  involving  a  large  number  of
offenders and a large number  of  victims,  the  normal  test  is  that  the
conviction could be sustained only  if  it  is  supported  by  two  or  more
witnesses who give a consistent account of the incident in question."

Since the accused persons and the 6 material eye witnesses in this case  are
co-villagers, it is expected that at least three witnesses should  be  in  a
position to name individual accused persons for sustaining  his  conviction.
Applying that test, it is found that  accused  no.9-Bhagwan  Singh,  son  of
Prabhu Lal; accused no.18-Suresh Kumar, son of Ram  Dhakad;  accused  no.20-
Kanhi Ram, son of Prabhu Lal; accused  no.27-Prahlad  Singh,  son  of  Nathu
Lal; and accused no.28-Ram Prasad, son of Bheru Lal deserve to be  acquitted
by granting benefit of doubt.  This benefit of doubt arises in their  favour
because although they have been named specifically by  informant  P.W.15  as
persons who were members of the unlawful assembly and  who  participated  in
assault but such claim of the informant has not been supported by more  than
one witness.  In other words, there is  no  clear  and  cogent  evidence  of
three witnesses against the aforesaid accused persons.  So  far  as  accused
no.28-Ram Prasad is concerned, no doubt his name has been  taken  by  P.W.12
and P.W.24 also but they have  not  specified  as  to  whether  it  was  Ram
Prasad, son of Bheru Lal or another accused by the same name,  i.e.  accused
no.25-Ram Prasad, son of Jeth Ram.
The appeals preferred by the  aforesaid  five  appellants,  namely,  Bhagwan
Singh, son of Prabhu Lal (appellant no.3 in Crl. Appeal  No.1239  of  2009);
Suresh Kumar, son of Ram Dhakad (appellant no.3 in  Crl.  Appeal  No.493  of
2009);  Kanhi Ram, son of Prabhu Lal (appellant no.4 in Crl. Appeal  No.1239
of 2009); Prahlad Singh, son of Nathu Lal (sole  appellant  in  Crl.  Appeal
No.1241 of 2009); and Ram Prasad, son of Bheru Lal (appellant no.4  in  Crl.
Appeal No.493 of 2009) are allowed.  They are granted benefit of  doubt  and
acquitted of all the charges.  The appeals of remaining  16  appellants  are
dismissed.  If on bail, their bail bonds  shall  stand  cancelled  and  they
shall be taken into custody forthwith to serve out  the  remaining  sentence
in accordance with law.


                             .....................................J.
                             [M.Y. EQBAL]


                             ......................................J.
                                  [SHIVA KIRTI SINGH]
New Delhi.
January 06, 2015.
-----------------------
23

CIVIL APPEAL NO. 1240 OF 2005 Phool Patti and Anr. ...Appellants Versus Ram Singh (Dead) Through Lrs. & Anr. ...Respondents

                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 1240 OF 2005

Phool Patti and Anr.                                ...Appellants
                                   Versus
Ram Singh (Dead) Through Lrs. & Anr.    ...Respondents

                               J U D G M E N T
Madan B. Lokur, J.

1.      On 3rd November, 1980 Ram Singh (nephew of Bhagwana) filed Suit  No.
630 of 1980 in the Court of the Senior  Sub-Judge,  Sonepat  (Haryana).   He
stated in the plaint that 52  kanals  of  land  in  the  revenue  estate  of
Nizampur Majra in district Sonepat was joint Hindu  family  property.  There
was also a residential house situated in the village but  it  is  not  clear
whether the residential house stood on the said land or was  on  a  separate
parcel of land. However, the appeal before us proceeded on  the  basis  that
the residential house is on the 52 kanals of land.
2.     The plaint filed by Ram Singh further stated  that  some  differences
had arisen between the members of the joint Hindu family and as a result  of
a family settlement, the said land was  given  to  him.  Ram  Singh  further
stated that he was in cultivating possession of the  agricultural  land  and
in physical possession of the residential house.
3.     Ram Singh averred that Bhagwana refused to admit  his  (Ram  Singh's)
claim to the agricultural land and  the  residential  house  and  in  effect
sought to negate the family settlement. Accordingly, Ram Singh prayed for  a
declaration that he is the  owner  and  in  cultivating  possession  of  the
agricultural land and in physical possession of the residential house.
4.     On 5th November, 1980 Bhagwana filed his written statement  admitting
the entire claim set up by Ram Singh. It appears that  Bhagwana's  statement
was also recorded subsequently. In view of the  written  statement  as  also
Bhagwana's oral statement, the Senior Sub-Judge, Sonepat  passed  a  consent
decree on 24th November, 1980 and decreed the suit  as  prayed  for  by  Ram
Singh. The result of the decree was that Ram Singh was  declared  the  owner
in possession of 52 kanals of land, that is, the agricultural land  and  the
residential house in the  revenue  estate  of  Nizampur  Majra  in  district
Sonepat.
5.     In view of the consent decree, there was no occasion for  the  Senior
Sub-Judge to decide whether there was or was not any family settlement,  nor
did the occasion arise for him to specifically decide whether the said  land
was self-acquired or ancestral.
6.  However, two conclusions can be drawn quite safely:  (i)  There  was  no
denial of the existence of a family settlement but on the contrary this  was
admitted by Bhagwana; (ii) The family settlement could be with reference  to
both the ancestral property as well as the self-acquired  property  or  only
with reference to the ancestral property.
7.     Bhagwana had two daughters, namely Phool Patti and  Phool  Devi.   He
had no son.  On 11th March,  1982  another  nephew  of  Bhagwana,  that  is,
Shobha Ram along with Phool Patti and Phool Devi filed Suit No. 234 of  1982
before the Senior Sub-Judge, Sonepat.  In that suit Ram Singh was the  first
defendant and Bhagwana was the second defendant.
8.     It was stated in the plaint that Bhagwana is the owner of  52  kanals
of land which was inherited by him from his lineal male ascendant  and  that
the properties are ancestral in his hands.  It  was  averred  that  Bhagwana
could not gift the  agricultural  land  and  residential  house  to  anybody
thereby depriving his legal heirs (Phool Patti  and  Phool  Devi)  of  their
rights in the disputed property.
9.  It was further  averred  in  the  plaint  that  the  decree  dated  24th
November,  1980  was  obtained  collusively  by  Ram  Singh  and  that   the
admissions made by Bhagwana in the suit filed  by  Ram  Singh  were  without
applying his mind.  It was  stated  that  there  was  no  family  settlement
whatsoever and that the decree dated 24th November, 1980 amounted to a  gift
made by Bhagwana in favour of Ram Singh.   This  could  only  be  through  a
written instrument that was duly stamped and  registered.   Since  the  gift
was neither written, nor stamped, nor  registered  it  could  not  be  acted
upon.
10. On the basis of the pleadings, the Trial Court framed  three  issues  as
follows:-
Whether judgment and decree  dated  24.11.1980  is  void,  illegal  and  not
binding upon the rights of the plaintiffs?

Whether any family settlement was made between the parties?

Relief.
11. In support of the  plaint,  Shobha  Ram  (another  nephew  of  Bhagwana)
entered the witness box and stated that there was no family  settlement  and
that Bhagwana was the owner of the ancestral land and  house.   Phool  Patti
and Phool Devi did not enter the witness box at all.
12. On 27th January, 1983 Bhagwana entered the witness box and  stated  that
he "gave" the disputed property to Ram Singh under his  free  will  treating
him as his son.  He also stated that the entire land was not ancestral -  20
kanals were purchased by Bhagwana while 32 kanals were ancestral property.
13. Ram Singh also entered the witness box  and  stated  that  Bhagwana  had
given him his property through the civil suit filed  by  Ram  Singh  against
Bhagwana and that the disputed property was given by  Bhagwana  of  his  own
free will.  Ram Singh also made a mention of some hibba  (gift)  but  it  is
not clear whether the reference was to the gift of the disputed property  or
some other land. However, for the purposes of  the  present  appeal,  it  is
assumed that Ram Singh referred to a hibba of the disputed property  in  his
favour by Bhagwana.
14. The Trial Court gave its decision on 31st May,  1983  and  it  was  held
that the decree dated 24th November, 1980  was  a  collusive  decree  and  a
nullity and therefore illegal and void. In effect, Bhagwana made a  gift  of
the disputed property in favour of Ram Singh  and  that  the  gift  required
compulsory registration under Section  17(1)(a)  of  the  Registration  Act,
1908.  It was also held that there was  no  family  settlement.   The  Trial
Court did not give any finding  whether  the  disputed  property  was  self-
acquired or ancestral.
15. Feeling aggrieved  by  the  decision  of  the  Trial  Judge,  Ram  Singh
preferred Civil Appeal No. 43/13 in the Court  of  the  Additional  District
Judge, Sonepat.  By its judgment and order, the First Appellate  Court  held
that Shobha Ram had no locus standii in the matter at all, since he  had  no
right, title or interest in the disputed property.  As regards the claim  of
Phool Patti and Phool Devi, it was held that they could  not  challenge  the
gift made by Bhagwana in favour of Ram Singh. It was observed that they  did
not even enter the witness box to challenge the decree dated 24th  November,
1980 and that Bhagwana was alive and had supported the judgment and  decree.
As such, the challenge made by Phool Patti  and  Phool  Devi  could  not  be
sustained.  The First Appellate Court further held  that  the  decree  dated
24th November, 1980 was not a collusive decree since Bhagwana had  supported
it.  Accordingly, the appeal filed by Ram Singh was allowed and  the  decree
of the Trial Court dated 31st May, 1983 was set aside.
16. The First Appellate Court noted that  the  learned  counsel  for  Shobha
Ram, Phool Patti and Phool Devi  did  not  challenge  the  transfer  of  the
disputed property but challenged the collusive decree.  It appears  that  in
view of this, the  First  Appellate  Court  did  not  examine  the  question
whether there was any family settlement and whether  the  disputed  property
was self-acquired or ancestral. The second issue framed by the  Trial  Court
was, therefore, not even adverted to by the First Appellate Court.
17. Feeling aggrieved by the setting  aside  of  the  decree  of  the  Trial
Court, Phool Patti and Phool Devi preferred Second Appeal No. 2176  of  1985
in the Punjab & Haryana High Court.   The respondents in the  Second  Appeal
were Ram Singh, Shobha Ram and Bhagwana.
18. The High Court, by  the  impugned  judgment  and  order,  dismissed  the
Second Appeal while holding that the disputed property  admittedly  was  the
self-acquired property of Bhagwana; the decree suffered by Bhagwana on  24th
November, 1980 was of his own free will and was for  the  services  rendered
by Ram Singh in looking after and taking care  of  Bhagwana;  only  Bhagwana
could challenge the decree dated 24th November, 1980 but he did  not  do  so
and finally, that Phool Patti  and  Phool  Devi  had  no  locus  standii  to
challenge the decree dated 24th November, 1980.
19. When this appeal came up for consideration on 21st March, 2009  a  Bench
of two  learned  judges  considered  the  submissions  of  learned  counsel,
particularly with reference to two decisions cited at the  Bar,  namely,  K.
Raghunandan and Ors. v. Ali Hussain Sabir & Ors.[1] and Bhoop Singh  v.  Ram
Singh Major.[2]   The Bench was of the view that there was an  inconsistency
in the decision of this Court in the  two  cases  mentioned  above.  It  was
observed as follows:-
"9.    Since the consent decree dated 24.11.1980 had been held by the  First
Appellate Court to be not collusive, the High Court in our  opinion  rightly
refused to interfere with that finding of fact.

10.    It was then urged by the  learned  counsel  for  the  appellant  that
there was violation of the Section 17 of the Registration Act, 1908.

11.    In this connection, it may be noted that  Section  17(2)(vi)  of  the
Registration Act states that "nothing in clauses (b) and (c) of  sub-section
(1) of Section 17 applies to:

"any decree or order of a Court except a decree or  order  expressed  to  be
made on a compromise and  comprising  immovable  property  other  than  that
which is the subject-matter of the suit or proceeding".

12.    In our opinion the exception mentioned  in  Section  17(2)(vi)  means
that if a suit is filed by the plaintiff in respect of property  A,  then  a
decree in that suit in respect of immovable property B (which  was  not  the
subject-matter of the suit at all) will require registration.  This  is  the
view taken by this Court in K. Raghunandan & Ors. v.  Ali  Hussain  Sabir  &
Ors.  2008 (9) Scale 215.

13.    However, a different view was taken by this Court in Bhoop  Singh  v.
Ram Singh Major 1995 (5) SCC 709 in which it is stated that:
"....We would think that the exception engrafted  is  meant  to  cover  that
decree or order of a court, including a decree  or  order  expressed  to  be
made on a compromise, which declares the pre-existing right and does not  by
itself create new  right,  title  or  interest  in  praesenti  in  immovable
property of the value of Rs. 100 or upwards......."

14.    In our opinion there seems to be inconsistency between the  decisions
of this Court in Bhoop  Singh's  case  (supra)  and  K.  Raghunandan's  case
(supra) in so far as the Registration Act  is  concerned.   Prima  facie  it
seems to us that the decision in Bhoop Singh's case  (supra)  does  not  lay
down the correct law since  Section  17(2)(vi)  on  its  plain  reading  has
nothing to do with any pre-existing right.  All  that  seems  to  have  been
stated therein is that if  a  decree  is  passed  regarding  some  immovable
property which is not a subject-matter of the  suit  then  it  will  require
registration.  As already explained above, if a suit is filed in respect  of
property A but the decree is in respect of immovable property  B,  then  the
decree  so  far  as  it  relates  to  immovable  property  B  will   require
registration.  This seems to be the plain meaning of clause (vi) of  Section
17(2) of the Registration Act.

15.    It is a well settled  principle  of  interpretation  that  the  Court
cannot add words to the statute or change its  language,  particularly  when
on a plain reading the meaning  seems  to  be  clear.   Since  there  is  no
mention of any pre-existing right in the exception in clause  (vi)  we  have
found it difficult to accept the views in Bhoop Singh's case (supra).

16.    It seems that there is inconsistency in the decisions of  this  Court
in Bhoop Singh's case (supra) and K. Raghunandan's case  (supra)  and  since
we are finding it difficult to agree with the  decision  of  this  Court  in
Bhoop Singh's case (supra), the matter should  be  considered  by  a  larger
Bench of this Court."[3]

20. The appeal was then placed before a Bench of  three  learned  judges  of
this Court and by an order dated  24th  July,  2014  it  was  held,  in  the
following words, that there was no inconsistency between the two decisions:
"The learned counsels have submitted that there is no inconsistency  in  the
judgments referred to in the order dated 31st March, 2009.
Upon hearing the learned counsel we  also  do  not  find  any  inconsistency
between the judgments delivered in the cases  of  (i)  Bhoop  Singh  v.  Ram
Singh Major & Ors. [(1995) 5 SCC 709] and (ii)  Raghunandan  &  Ors  v.  Ali
Hussain Sabir & Ors. [(2008) 13 SCC 102].
In view of the afore-stated circumstances, we refer the matter back  to  the
concerned Court so that the appeal can be decided on merits."

21. The appeal was then sent back to a Bench of two judges  for  a  decision
on the appeal on merits.  It is under these circumstances that it  has  come
up for final disposal.
22. On these broad facts, learned counsel for  the  appellants  Phool  Patti
and Phool Devi contended that the decree dated 24th  November,  1980  was  a
collusive decree.  In fact, a false case of a  family  settlement  had  been
made out by Ram  Singh.   In  reality,  Bhagwana  had  gifted  the  disputed
property to Ram  Singh  and  that  required  compulsory  registration  under
Section 17(1)(a) of the  Registration  Act,  1908.  Bhagwana  had  not  only
avoided payment of registration charges but also stamp duty and  had  played
a fraud upon the Trial Court in the first instance.
23. It was submitted that the disputed property was  not  the  self-acquired
property of Bhagwana and being ancestral property,  Phool  Patti  and  Phool
Devi had an interest in the disputed property and would  have  inherited  it
on the death of Bhagwana.
24. It was further submitted by learned counsel that if it is  assumed  that
the decree dated 24th November, 1980 was not a collusive decree and that  no
gift had been made by Bhagwana in favour of Ram Singh, then a right  in  the
disputed property was created for the first time in favour of Ram Singh  and
this required compulsory registration.
25. The sum and substance of the submissions  of  learned  counsel  for  the
appellants is that if the decree dated 24th November, 1980  is  a  collusive
decree, then Bhagwana had, in reality, gifted the disputed property  to  Ram
Singh and the gift was required to be compulsorily registered;  but  if  the
decree is not a collusive decree then an interest had been  created  in  the
disputed property in favour of Ram Singh for the first time by a  decree  of
a court and therefore the transfer of the disputed property was required  to
be compulsorily registered. Either way, according to  learned  counsel,  the
transfer of  the  disputed  property  by  Bhagwana  to  Ram  Singh  required
compulsory registration.
26. The basic premise on which the case of the appellants rests is that  the
consent decree dated 24th November, 1980 was a  collusive  decree.  However,
in the order dated 21st March, 2009 it was specifically held by  this  court
that "Since the consent decree dated 24.11.1980 had been held by  the  First
Appellate Court to be not collusive, the High Court in our  opinion  rightly
refused to interfere with that finding of fact." This conclusion cannot  now
be challenged by the appellants and we too are  bound  by  this  conclusion.
The only doubt that this court had was with regard to what  appeared  to  be
an inconsistency between two decisions of  this  court.  A  Bench  of  three
judges of this court has now held that there  is  no  inconsistency  between
the two decisions. That issue is also no longer open for discussion.
27.  In the welter of conflicting and  sometimes  contradictory  facts,  the
only statement that can be relied upon  is  that  of  Bhagwana  himself  who
stated in the witness box on 27th January, 1983 (in the  second  suit)  that
the entire disputed property was not  ancestral  but  that  20  kanals  were
purchased by him while 32 kanals were ancestral property.
28.  If that be so, then Bhagwana was entitled to gift 20 kanals of land  to
Ram Singh which he  did.  As  regards  the  remaining  32  kanals,  Bhagwana
accepted the existence of a family settlement, and the Trial Court  (in  the
first suit) did accept that there was a family settlement.  It  is  in  this
family settlement that 32 kanals of land, being the  ancestral  property  of
Bhagwana came to the share of Ram Singh. It is true that in the second  suit
it was held that there was no family settlement but that was  on  the  basis
that the decree dated 24th November, 1980 was a collusive decree. But if  it
is held, as indeed it has been held in the  order  dated  21st  March,  2009
that the consent decree was not a collusive  decree,  then  it  must  follow
that the finding that there was no family  settlement  (arrived  at  in  the
second suit) must be held incorrect, and  we  do  so,  particularly  in  the
absence of any contrary finding on this issue by the First  Appellate  Court
or the High Court. Consequently, in  terms  of  the  family  settlement,  32
kanals of land originally belonging to Bhagwana came to  the  share  of  Ram
Singh in the family settlement. This  explains  the  statement  of  Bhagwana
that he "gave" the disputed property  to  Ram  Singh  under  his  free  will
treating him as his son, that is, 20 kanals of his  self  acquired  property
and 32 kanals of his ancestral property that then came to the share  of  Ram
Singh through the family settlement.
29. What follows from this is that 20 kanals of land was gifted by  Bhagwana
to Ram Singh. This  gift  clearly  requires  compulsory  registration  under
Section 17(1)(a) of the Registration Act, 1908 (the Act). Ram Singh's  claim
over 32 kanals of land was acknowledged in the  consent  decree  dated  24th
November, 1980. This did not require  compulsory  registration  in  view  of
Section 17 (2) (vi) of the Act.
30.    Learned counsel for the appellants cited three decisions  to  support
his contention that the consent decree was collusive  and  therefore  of  no
effect. He referred to Nagubai Ammal v. B. Shama Rao,[4] Rup Chand Gupta  v.
Raghuvanshi  Pvt.  Ltd.[5]  and   Ramchandra   G.   Shinde   v.   State   of
Maharashtra.[6] However, in view of the conclusion arrived at by this  court
in its order dated 21st March, 2009  we  are  not  inclined  to  reopen  the
issue, as indeed we cannot. Nor do we disagree with the  finding  so  as  to
refer the issue to a larger Bench.
31. It was contended that Phool Patti  and  Phool  Devi,  the  daughters  of
Bhagwana had the necessary locus standii  to  challenge  the  gift  made  by
Bhagwana to Ram Singh. While  this  may  or  may  not  be  so  (we  are  not
commenting on the issue) the question of a  challenge  to  the  gift  of  20
kanals of land does not arise on the  facts  of  this  case.  There  was  no
pleading to this effect, no issue was framed in  this  regard  in  the  suit
filed by Phool Patti and Phool Devi, nor was any evidence led  to  challenge
the validity of the gift. It is too late in the day  for  them  to  question
the validity of the gift in favour of Ram Singh for the first time  in  this
court without any foundation, factual or otherwise, having been laid  for  a
decision on this issue.
32. The terms of the family settlement  are  not  on  record.  As  mentioned
above, the family settlement could relate to the ancestral as well as  self-
acquired property of Bhagwana or only the  ancestral  property.  It  appears
that it related only to the ancestral property  and  not  the  self-acquired
property (hence the reference to a hibba). The decree relating to 32  kanals
of land  did  not  require  compulsory  registration,  as  mentioned  above.
However,  the  self  acquired  property  of  Bhagwana  that  is  20  kanals,
therefore, in view of the law laid down  in  Bhoop  Singh  the  gift  of  20
kanals of land by Bhagwana in  favour  of  Ram  Singh,  notwithstanding  the
decree  in  the  first  suit,  requires  compulsory  registration  since  it
created, for the first time, right, title or interest in immovable  property
of a value greater than Rs.100/- in favour of Ram Singh.
33. In view of the above  discussion,  the  appeal  is  partly  allowed  and
disposed of in the manner indicated above. No costs.



                  .......................................J
                                     ( Madan B. Lokur )




......................................J
                                     ( C. Nagappan )


New Delhi;
January 06, 2015







-----------------------
[1]  2008 (9) SCALE 215 = (2008) 13 SCC 102
[2]  (1995) 5 SCC 709
[3]  (2009) 13 SCC 22
[4]  1956 SCR 463
[5]  (1964) 7 SCR 760, 763
[6]  (1993) 4 SCC 216, 225