Externment — Chhattisgarh Rajya Suraksha Adhiniyam, 1990 — Section 5 — Section 8 — Natural justice — Notice and hearing — Mandatory condition precedent — Ex parte externment order passed upon reopening of closed proceedings without notice or hearing — Order vitiated. [Paras 13–14, 18–24] Externment — Section 8(5) — Ex parte proceedings — Statutory exceptions specifically confined to failure to execute security bond or failure to appear during inquiry — District Magistrate cannot dispense with notice and hearing on any other ground. [Paras 21–22] Natural justice — Statutory hearing requirement — Where hearing is expressly mandated before an order affecting fundamental rights, compliance constitutes a condition controlling the jurisdiction of the authority — Failure to comply renders the order void ab initio. [Para 23] Externment — Reopening of closed proceedings — Administrative authority — No inherent power of review/recall — Closure order cannot be reopened suo motu in the absence of statutory authority. [Para 25] Externment — Fresh material/supervening events — Even where a fresh report is received after closure of proceedings, the competent authority is required to recommence the procedure prescribed by Section 8 — Previous hearing in the earlier proceedings does not dispense with a fresh hearing on the fresh material. [Para 25]

 

VIJAY KUMAR RAJPOOT @ VIJJU v. STATE OF CHHATTISGARH & ORS.

Criminal Appeal No. 4083 of 2026 — 2026 INSC 926 — Supreme Court of India — Judgment dated 31 August 2026

HEADNOTES WITH PARAGRAPH NUMBERS

Externment — Chhattisgarh Rajya Suraksha Adhiniyam, 1990 — Section 5 — Section 8 — Natural justice — Notice and hearing — Mandatory condition precedent — Ex parte externment order passed upon reopening of closed proceedings without notice or hearing — Order vitiated. [Paras 13–14, 18–24]

Externment — Section 8(5) — Ex parte proceedings — Statutory exceptions specifically confined to failure to execute security bond or failure to appear during inquiry — District Magistrate cannot dispense with notice and hearing on any other ground. [Paras 21–22]

Natural justice — Statutory hearing requirement — Where hearing is expressly mandated before an order affecting fundamental rights, compliance constitutes a condition controlling the jurisdiction of the authority — Failure to comply renders the order void ab initio. [Para 23]

Externment — Reopening of closed proceedings — Administrative authority — No inherent power of review/recall — Closure order cannot be reopened suo motu in the absence of statutory authority. [Para 25]

Externment — Fresh material/supervening events — Even where a fresh report is received after closure of proceedings, the competent authority is required to recommence the procedure prescribed by Section 8 — Previous hearing in the earlier proceedings does not dispense with a fresh hearing on the fresh material. [Para 25]

Alternative statutory remedy — Article 226 — Rule of exhaustion — Exceptions — Availability of appeal does not bar writ jurisdiction where the impugned order suffers from violation of natural justice or want of jurisdiction. [Paras 16, 26–27]

Externment — Section 5(b) — Conditions precedent — Mere registration of criminal cases insufficient — Provision requires reasonable grounds for believing that the person is engaged or about to be engaged in specified offences involving force or violence or offences falling within the statutory categories — Where alleged offences do not satisfy those requirements, invocation of Section 5(b) is misconceived. [Paras 29–30]

Externment — Section 5(a) — Fundamental rights — Extraordinary preventive power — Multiple criminal cases, by themselves, do not ipso facto justify externment — Competent authority must reach bona fide and informed subjective satisfaction based upon objective material having a discernible nexus with the conclusion. [Para 31]

Externment — Subjective satisfaction — Judicial review — Authority need not write a judgment like a court, but order must disclose, at least broadly, the reasons for satisfaction — Court may examine existence and consideration of relevant material, mala fides, unreasonableness and arbitrariness. [Paras 31–33]

Externment — Extraordinary measure — Article 19(1)(d) — Restriction on freedom of movement — Power must be exercised sparingly and only in extraordinary circumstances; objective material and statutory safeguards are indispensable. [Paras 31, 33]

Held: The externment order was unsustainable on multiple independent grounds: (i) breach of the mandatory hearing requirement under Section 8; (ii) want of jurisdiction to reopen the closed proceedings; (iii) misconceived invocation of Section 5(b); and (iv) absence of cogent material and reasons supporting subjective satisfaction under Section 5(a). The High Court also erred in mechanically relegating the appellant to the statutory appellate remedy under Section 9. [Paras 24–27, 29–36]

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I. FACTS

1. Original externment proceedings

Paras 2–4: Proceedings were initiated in 2019 on the basis of ten criminal cases registered between 2009 and 2019. The competent authority subsequently closed the proceedings on 6 October 2025, noting that the appellant had been acquitted in the earlier cases, no fresh police report had been submitted after 2019, and externment on the basis of those cases was not justified. The appellant was merely warned to refrain from future criminal activity.

2. Fresh criminal cases

Two subsequent developments occurred:

• FIR No. 117/2023 concerning alleged unauthorised development; and
• FIR No. 483/2025 concerning alleged abusive remarks against Baba Guru Ghasidas.

[Para 5]

3. Revival of the closed proceedings

A fresh police report dated 3 November 2025 was submitted. The District Magistrate recalled the earlier closure order and proceeded to extern the appellant for one year from Raigarh and contiguous districts.

4. Crucial procedural defect

The externment order was passed ex parte, while the appellant was in judicial custody, without prior notice or opportunity of hearing. [Para 11]

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II. SECTION 8 — HEARING IS A CONDITION PRECEDENT

5. Statutory command

Section 8(1) requires the District Magistrate, before passing an order under Sections 3 to 6, to:

1. inform the person in writing of the general nature of the material allegations; and
2. give him a reasonable opportunity to explain them.

[Para 13]

6. Further procedural safeguards

Section 8 also permits:

• examination of witnesses;
• filing of written statements;
• representation through a legal practitioner; and
• procedures to secure attendance during inquiry.

[Para 13]

7. Ex parte power is narrowly confined

Section 8(5) permits ex parte proceedings only where the person:

• fails to execute the required security bond; or
• fails to appear before the District Magistrate during the inquiry.

No general power exists to dispense with notice or hearing. [Paras 21–22]

8. Supreme Court's decisive conclusion

The Court held that notice and reasonable opportunity of hearing under Section 8 are conditions precedent to exercise of the externment power. An order made contrary to those mandatory requirements is vitiated and liable to be declared void ab initio. [Para 19]

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III. NATURAL JUSTICE

9. Audi alteram partem

The Court expressly characterised the defect as not merely procedural but as a breach of the audi alteram partem rule. [Para 24]

10. Nawabkhan Abbaskhan principle

Relying upon Nawabkhan Abbaskhan v. State of Gujarat, the Court reiterated that where a statute requires hearing before administrative action restricting a fundamental right, the duty to hear assumes constitutional significance. Failure to comply can render the order void ab initio. [Para 23]

This is a particularly strong formulation for your jurisprudence collection:

Statutory hearing + fundamental right + administrative power = jurisdictional safeguard, not an empty procedural formality.

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IV. POWER OF REVIEW — ABSENCE OF STATUTORY AUTHORITY

11. Closed case could not simply be recalled

The District Magistrate had expressly closed the earlier proceedings.

The Supreme Court held:

An administrative authority has no power to review its earlier order unless the statute confers such power.

[Para 25]

12. Fresh report does not create review jurisdiction

The fact that a fresh police report was received did not retrospectively confer power upon the District Magistrate to revive the closed proceeding as though exercising a power of review.

Instead, the authority was required to follow the statutory procedure afresh, including Section 8. [Para 25]

13. Previous hearing is not enough

This directly rejects the respondents' argument that the appellant had already received a hearing in the earlier proceedings.

Fresh material → fresh proceedings → fresh statutory hearing.

That is the practical effect of Para 25.

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V. ARTICLE 226 — ALTERNATIVE REMEDY

14. High Court's approach was erroneous

The High Court declined to exercise Article 226 jurisdiction merely because Section 9 provided an appeal to the State Government. [Para 16]

15. Natural justice and jurisdiction are recognised exceptions

The Supreme Court held that this was precisely a case where the High Court ought to have entertained the writ petition because the challenge disclosed:

• breach of natural justice; and
• want of jurisdiction.

[Paras 26–27]

16. Important formulation

The Court characterised the High Court's refusal as an “abject failure to exercise a jurisdiction vested in the High Court.” [Para 27]

Thus, the judgment reinforces the distinction between:

existence of alternative remedy
and
availability of a remedy capable of curing a jurisdictional/natural-justice defect.

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VI. SECTION 5(b) — STATUTORY CONDITIONS NOT SATISFIED

17. Section 5(b) is not triggered by every criminal case

Section 5(b) requires reasonable grounds for believing that the person is engaged or about to be engaged in:

• an offence involving force or violence; or
• specified categories of offences identified by the provision.

It additionally contains a statutory requirement concerning unwillingness of witnesses to come forward because of apprehension regarding their safety or property. [Para 12]

18. Offences relied upon did not satisfy Section 5(b)

The Court examined the offences relied upon and found that they did not involve force or violence and did not fall within the categories contemplated by Section 5(b). The alleged offences concerning religion corresponded to Chapter XV IPC rather than the statutory categories specified in Section 5(b). [Para 30]

19. Result

The conditions precedent for exercise of Section 5(b) power were absent. Its invocation was therefore wholly misconceived. [Para 30]

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VII. SECTION 5(a) — SUBJECTIVE SATISFACTION

20. Wide power, but not unfettered power

Section 5(a) uses wide language concerning acts causing or calculated to cause alarm, danger or harm to persons or property. Nevertheless, the seriousness of externment requires corresponding safeguards. [Para 31]

21. Multiple criminal cases are not enough

The Court expressly held:

Mere registration of multiple criminal cases does not ipso facto justify externment. [Para 31]

22. Objective material + subjective satisfaction

Before exercising the power, the District Magistrate must have:

Objective material

↓

Bona fide and informed subjective satisfaction

↓

Discernible nexus between material and conclusion

↓

Externment, if genuinely necessary

[Para 31]

23. Reasons need not be elaborate

The authority need not write a judgment comparable to a judicial order. But the order must disclose, at least broadly, the reasons that produced the subjective satisfaction. [Para 31]

24. Judicial review remains available

The Court can examine:

• whether material existed;
• whether relevant material was considered;
• whether there was application of mind;
• mala fides;
• unreasonableness; and
• arbitrariness.

The Court does not substitute its own view merely because another view might be possible. [Para 33]

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VIII. EXTERNMENT AS AN EXTRAORDINARY MEASURE

25. Article 19(1)(d)

Externment directly interferes with the citizen's fundamental right to move freely throughout India. It may prevent a person from residing in his own home and may affect livelihood. [Para 33]

26. Therefore, power must be exercised sparingly

The Court reiterated that externment is an extraordinary measure and requires objective material sufficient to support the competent authority's subjective satisfaction. [Para 33]

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IX. APPLICATION TO THE PRESENT ORDER

27. Failure to disclose cogent material

The externment order merely referred to resentment and public outrage among certain communities. It did not identify the material establishing such conclusions or explain why externment was necessary. [Para 32]

28. No meaningful opportunity to answer

The appellant had not been served with notice and had no opportunity to explain the fresh allegations. [Para 32]

29. Cumulative defects

The order therefore failed both procedurally and substantively:

No notice/hearing

• no jurisdiction to reopen
• Section 5(b) conditions absent
• insufficient material/reasons under Section 5(a)
  = Externment order legally unsustainable.

---

X. FINAL HOLDING

30. Externment order quashed

The Supreme Court quashed both:

1. the externment order; and
2. the High Court order refusing to exercise Article 226 jurisdiction.

[Para 36]

31. Appellant free to return

The appellant was declared free to enter the districts from which he had been externed. [Para 37]

32. No finding on pending criminal cases

The Court expressly clarified that its observations were not findings on the merits of the pending criminal cases in which the appellant was an accused. [Para 38]

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RATIO DECIDENDI — COMPACT FORM

1. Where Section 8 expressly requires notice and hearing before externment, such hearing is a condition precedent to jurisdiction; an externment order passed without it is vitiated.

2. The statutory power to proceed ex parte under Section 8(5) is confined to the contingencies expressly specified in that subsection; it cannot be expanded by administrative convenience or apprehension.

3. An administrative authority cannot review or recall its own concluded order unless the statute confers such power. Receipt of fresh material does not create an implied power of review.

4. Where fresh material leads the authority to reopen externment action, the authority must comply afresh with the statutory hearing requirement.

5. The rule requiring exhaustion of an alternative statutory remedy does not ordinarily bar Article 226 where the impugned action suffers from violation of natural justice or want of jurisdiction.

6. Section 5(b) cannot be invoked merely because criminal cases have been registered; the offences and other statutory conditions must fall within the precise requirements of the provision.

7. Under Section 5(a), externment requires objective material, a bona fide and informed subjective satisfaction, and a discernible nexus between the material and the necessity for externment.

8. Because externment seriously restricts Article 19(1)(d), it is an extraordinary measure and cannot rest upon ipse dixit, conjecture, or mere registration of criminal cases.

9. The authority need not write a judicial judgment, but its order must demonstrate sufficient application of mind to the material relied upon.

10. The externment order in the present case failed on each of these fundamental safeguards and was therefore quashed.

Finance Act, 1979 — Foreign Travel Tax (FTT) — Section 38(3) and (4) — Delayed payment distinguished from non-payment — “Fails to pay” means non-payment and cannot be equated with delayed payment — Section 38(3) applies to non-payment; delayed deposit is governed by Section 38(4) read with Rules 4 and 9 of the Foreign Travel Tax Rules, 1979. [Paras 35, 37.3, 40] Penalty — Fiscal statute — Mens rea — Exclusion of mens rea and automatic imposition of penalty are distinct concepts — Even where proof of mens rea is not required, penalty does not necessarily follow automatically upon every statutory breach — Whether penalty should be imposed depends upon the statutory scheme and adjudicatory process. [Para 46] Foreign Travel Tax Rules, 1979 — Rule 4 — Deposit within 30 days — Proviso conferring discretion upon Collector of Customs to permit extended period upon sufficient cause — Statutory timeline therefore not inflexible. [Paras 27, 37.2, 37.4]

 

M/S. SAUDI ARABIAN AIRLINES v. UNION OF INDIA & ORS.

Civil Appeal No. 1052 of 2013 — Supreme Court of India — 2026 INSC 933

HEADNOTE

Finance Act, 1979 — Foreign Travel Tax (FTT) — Section 38(3) and (4) — Delayed payment distinguished from non-payment — “Fails to pay” means non-payment and cannot be equated with delayed payment — Section 38(3) applies to non-payment; delayed deposit is governed by Section 38(4) read with Rules 4 and 9 of the Foreign Travel Tax Rules, 1979. [Paras 35, 37.3, 40]

Penalty — Fiscal statute — Mens rea — Exclusion of mens rea and automatic imposition of penalty are distinct concepts — Even where proof of mens rea is not required, penalty does not necessarily follow automatically upon every statutory breach — Whether penalty should be imposed depends upon the statutory scheme and adjudicatory process. [Para 46]

Foreign Travel Tax Rules, 1979 — Rule 4 — Deposit within 30 days — Proviso conferring discretion upon Collector of Customs to permit extended period upon sufficient cause — Statutory timeline therefore not inflexible. [Paras 27, 37.2, 37.4]

Penalty — Rule 12 — Show-cause notice and hearing — Adjudicating authority possesses discretion whether to impose penalty — Power to impose penalty necessarily includes power not to impose penalty — Minimum penalty becomes relevant only after authority determines that penalty is imposable. [Paras 39, 40, 46]

Reformatio in peius — Appeal/remand — Appellant cannot be placed in a worse position merely because he exercised a statutory appellate remedy — Principle forms part of fair procedure, natural justice and equity. [Paras 50–54]

Held: Delay in depositing FTT, where the tax was ultimately paid before issuance of show-cause notice, could not be treated as “failure to pay” under Section 38(3). Such delay fell within Section 38(4), read with Rules 4 and 9. Penalty was not automatic, and the authorities failed to consider the statutory discretion to condone delay and the discretion inherent in the adjudicatory process. The penalty was therefore unsustainable. The Court also held that enhancement of penalty from ₹12,000 to ₹71,29,140 after the appellant exercised his appellate remedy offended the principle against reformatio in peius. [Paras 48–55]

---

I. ANALYSIS OF FACTS

1. Nature of appellant's obligation

Paras 4–5: Saudi Arabian Airlines was an authorised carrier operating international flights from India. It collected Foreign Travel Tax from passengers and was required to deposit the tax into the Government treasury within the statutory period under the Finance Act and the 1979 Rules.

2. Six instances of delayed payment

Para 6: There were six relevant instances of delayed payment. In five cases, the delay ranged from 1 to 11 days; in one case, the delay was 63 days. Importantly, in five of the six instances the demand drafts had already been purchased from the banks before the respective due dates, but were deposited into the treasury later.

3. Explanation for delay

The appellant explained that the five shorter delays resulted from security restrictions. The 63-day delay was attributed to the employee entrusted with depositing the demand draft being on emergency leave. [Para 47]

4. Initial penalty

The original adjudicating authority imposed comparatively modest penalties:

• ₹12,000 for six cases of late payment;
• ₹18,000 for seven cases of short payment; and
• ₹6,000 for three cases of delayed monthly returns.

[Para 9.1]

5. De novo proceedings and enormous enhancement

After remand, the adjudicating authority imposed ₹71,29,140 as penalty for the six cases of late payment. Thus, the penalty increased from ₹12,000 to more than ₹71 lakh. [Paras 11, 50]

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II. ISSUES

The Supreme Court ultimately considered four important questions:

6. Whether delayed payment amounts to “failure to pay” under Section 38(3).

7. Whether delayed payment is instead governed by Section 38(4) read with Rules 4 and 9.

8. Whether imposition of penalty is automatic merely because the statutory deadline was breached.

9. Whether an appellant can be placed in a substantially worse position after exercising a statutory appellate remedy.

---

III. STATUTORY SCHEME

10. Section 35 — FTT

Paras 20–20.1: Section 35 imposed Foreign Travel Tax on passengers undertaking international journeys and required the tax collected by authorised carriers to be paid to the credit of the Central Government.

11. Section 35A — Interest

Para 21: Section 35A separately provided for interest where FTT was not paid within the prescribed period. Interest was calculated for the entire period of delay, at a notified rate between 20% and 30% per annum.

This distinction becomes important:

Tax → principal liability

Interest → consequence of delay

Penalty → separate statutory consequence requiring examination under Section 38

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IV. SECTION 38(3) — NON-PAYMENT

12. Exact statutory language

Para 35: Section 38(3) provided penalty where a carrier or other person “fails to pay” FTT to the credit of the Central Government. The penalty was not less than one-fifth and could extend to three times the tax not so paid.

13. Meaning of “fails to pay”

Para 35.1: The Court identified two crucial expressions:

• “fails to pay the foreign travel tax”, and
• “the amount of the tax not so paid.”

Both expressions occur in the same provision.

The Court's interpretation was decisive:

“Failure to pay” means “non-payment”; it does not mean and cannot be equated with “delay in making payment.”

[Para 35.1]

14. Fiscal statute must be interpreted according to its language

The Court refused to enlarge the expression “fails to pay” so as to include delayed payment. In taxation statutes, courts cannot import additional meanings into clear statutory language through interpretative expansion. [Para 35.1]

---

V. SECTION 38(4) — DELAYED PAYMENT

15. Section 38(4) covers breach of Rules

Para 37: Section 38(4) provides for penalty for breach of rules made under Chapter V. Such penalty ranges from ₹500 to ₹50,000, with additional daily penalty in case of continuing breach.

16. Rule 4 specifically deals with delay

Para 37.2: Rule 4 requires the carrier to deposit the FTT collected during a month within 30 days from the end of that month. But its proviso permits the Collector of Customs, upon sufficient cause being shown and having regard to the carrier's accounting system, to allow a longer period.

17. Rule 9 similarly permits extension for returns

Rule 9 requires monthly returns within 30 days but likewise permits the Collector of Customs to grant additional time. [Para 37.2]

18. Critical statutory distinction

Para 37.3: The Supreme Court held:

Section 38(3) → non-payment

Section 38(4) + Rules 4 & 9 → delayed payment / delayed return

The two concepts cannot be conflated.

---

VI. WHEN DOES DELAY BECOME NON-PAYMENT?

19. Payment before show-cause notice

The Court gave a particularly useful practical distinction.

If the carrier deposits the tax after receiving the show-cause notice, that is treated as non-payment.

But if the carrier makes payment before issuance of the show-cause notice, it is a case of delayed payment. [Para 37.3]

This is a significant proposition for the interpretation of Section 38.

---

VII. PENALTY IS NOT AUTOMATIC

20. Rule 12 creates an adjudicatory process

Para 39: Rule 12 requires:

1. written notice stating the grounds;
2. opportunity to make written representation; and
3. reasonable opportunity of hearing.

The Court held that Rule 12 must be read together with Rule 11 and the proviso to Section 38(5).

21. Discretion to decline penalty

Para 39.1: If the noticee demonstrates that the grounds for penalty are unjustified, the adjudicating officer may decide not to impose penalty. If the explanation is rejected and penalty is considered justified, only then does the question of the statutory range arise.

22. “Shall” does not necessarily mean automatic

Para 40: The Court emphatically held that the use of the word “shall” does not automatically convert penalty into a mandatory consequence in every case. Whether a provision is mandatory or discretionary must be determined from the context and statutory scheme.

23. Minimum penalty does not mean automatic penalty

The Court's formulation is particularly important:

The question of minimum penalty arises only after the authority reaches the conclusion that penalty should be imposed.

[Para 46]

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VIII. MENs REA — IMPORTANT DISTINCTION

24. Exclusion of mens rea ≠ automatic penalty

Para 46: The Court reconciled the apparently conflicting authorities.

There may be statutory offences where mens rea is not required.

But that does not mean that penalty is automatically imposed whenever a breach occurs.

The two propositions are distinct:

Exclusion of mens rea
≠
Automatic imposition of penalty

[Para 46]

25. Hindustan Steel principle

The Court relied on Hindustan Steel Ltd. v. State of Orissa, where it was held that even where a minimum penalty exists, the authority may refuse to impose penalty in appropriate cases involving technical or venial breaches or bona fide conduct. [Paras 42–42.1]

26. Present judgment reconciles strict liability with discretion

The judgment therefore establishes:

Mens rea may not be an ingredient of liability, but penalty still requires a judicial exercise of statutory discretion.

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IX. APPLICATION TO PRESENT FACTS

27. Five delays were extremely short

Para 47: In five cases the delays were only 1 to 11 days, and the demand drafts had actually been purchased before the due dates.

28. Appellant furnished an explanation

The appellant explained the five delays by security restrictions and the 63-day delay by the emergency leave of the employee responsible for depositing the draft. [Paras 47.1–47.2]

29. Authorities failed to exercise statutory discretion

The appellate authority acknowledged that the appellant's explanations “may be genuine”, yet proceeded on the basis that once the deadline was crossed, penalty automatically followed. [Para 47.3]

The Supreme Court found this approach legally erroneous.

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X. THREE FUNDAMENTAL ERRORS OF THE LOWER AUTHORITIES

30. First error — wrong statutory provision

Para 48: The case did not fall under Section 38(3). It fell under Section 38(4) because it concerned delayed payment rather than non-payment.

31. Second error — failure to consider condonation

Rule 4 expressly empowered the Collector to extend the period where sufficient cause was shown. The authorities failed to consider this statutory discretion. If the appellant's explanation was genuine, the delay could have been condoned and no penalty would have arisen. [Para 48]

32. Third error — treating penalty as automatic

Penalty under Section 38(2), (3) or (4) is not automatic merely because a statutory breach occurred. The officer has discretion whether penalty is imposable. Only after deciding that penalty is warranted does the prescribed range become relevant. [Para 48]

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XI. REFORMATIO IN PEIUS

33. Dramatic enhancement after appeal

The original penalty was ₹12,000.

After the appellant exercised his appellate remedy and the matter was remanded, the penalty became ₹71,29,140. [Para 50]

34. Can an appellant become worse off?

Para 51: The Court posed the fundamental question:

Can a litigant be placed in a worse position merely because he exercised his statutory right of appeal?

The answer was No.

35. Principle of no reformatio in peius

Paras 52–54: Reformatio in peius means a change for the worse. Its prohibition embodies the principle that a person should not suffer an aggravated position merely because he invokes a legal remedy. The Court treated this as part of fair procedure, natural justice and equity.

36. Endorsement by Supreme Court

The Court relied upon Nagarajan v. State of Tamil Nadu, which endorsed the principle that an appellant cannot become worse off merely by filing an appeal. [Para 54]

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XII. CONCLUSION

37. Penalty not imposable

Para 49: On the facts of the case, the Supreme Court held that penalty was not imposable upon the appellant.

38. Orders imposing penalty quashed

Para 55: The Court set aside:

• High Court judgment dated 09.08.2010;
• revisional order dated 29.10.2004;
• appellate order dated 09.01.2003; and
• de novo adjudication order dated 08.08.2001,

insofar as they imposed penalty for the six delayed FTT payments.

39. Refund with interest

Any amount paid as penalty was directed to be refunded with 9% interest within three months. The bank guarantee was also discharged. [Para 55]

40. Final result

Appeal allowed. No order as to costs. [Para 56]

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RATIO DECIDENDI

Primary ratio

The expression “fails to pay” in Section 38(3) of the Finance Act, 1979 means non-payment and does not include delayed payment. Delayed payment of FTT is governed by Section 38(4) read with Rules 4 and 9 of the Foreign Travel Tax Rules, 1979.

Secondary ratio

Penalty for statutory breach is not necessarily automatic merely because the statute uses the word “shall” or prescribes a minimum penalty. Where the statutory scheme provides for notice, representation and hearing, the adjudicating authority must exercise discretion whether penalty should be imposed at all.

Third ratio

Where the statute expressly permits condonation of delay upon sufficient cause, that discretion must be considered before imposing penalty.

Fourth ratio

A person exercising a statutory appellate remedy should not ordinarily be placed in a worse position merely because he appealed. The prohibition against reformatio in peius is a principle of fair procedure, natural justice and equity.

Where the prosecution relies substantially upon eyewitness testimony, but the witnesses' presence is doubtful, their testimony is materially inconsistent with medical evidence, independent witnesses are withheld, material physical evidence is not recovered or scientifically examined, the alleged motive is unproved, and the investigation itself fails to establish the scene and manner of occurrence, the prosecution cannot be said to have proved guilt beyond reasonable doubt. The Court cannot cure such evidentiary deficiencies by relying upon an allegation that the Investigating Officer conducted a collusive investigation or by presuming facts favourable to the prosecution.

 

DHRUB SINGH ETC. v. STATE OF BIHAR

Criminal Appeal Nos. 1434–1438 of 2017 — Supreme Court of India — Judgment pronounced 1 September 2026
2026 INSC 935

HEADNOTE

Criminal Trial — Murder — Appreciation of eyewitness evidence — Material inconsistencies — Scene of occurrence not satisfactorily established — Absence of recovery of cartridges and weapons — Non-examination of independent witness — Medical evidence inconsistent with ocular version — Related witnesses whose presence was doubtful — Prosecution failed to establish guilt beyond reasonable doubt — Accused entitled to acquittal. [Paras 1–11]

Investigation — Failure to collect material evidence — No cartridges recovered despite allegation of indiscriminate firing — Bullet which caused death not recovered — Weapons not recovered — Blood-stained earth not sent for chemical analysis — Clothes of deceased and witnesses not seized — Independent witness not examined — Investigation found to be seriously deficient. [Paras 3–5, 8, 11]

Medical evidence — Ocular testimony — Conflict — Doctor's evidence indicated that deceased was in a sitting position when shot from close range — This was inconsistent with prosecution version that accused ambushed the party from behind while they were walking — Medical evidence materially weakened eyewitness account. [Paras 7, 10]

Motive — Mere allegation insufficient — Alleged kidnapping and political rivalry not established by evidence — Alleged principal person behind motive not arrayed as accused — Motive did not inspire confidence and could not sustain conviction. [Para 6]

Criminal jurisprudence — Burden of proof — Defective investigation — Court cannot presume guilt merely because investigation was defective or investigating officer was alleged to be collusive — Where substantive prosecution evidence itself is unreliable and there is complete lack of corroborative evidence, accused must receive benefit of reasonable doubt. [Para 11]

Held: The prosecution failed to establish the culpability of the accused beyond reasonable doubt. The eyewitness testimony did not inspire confidence; the investigation yielded no reliable corroborative evidence; the medical evidence contradicted the ocular version; and the alleged motive was unsubstantiated. The accused were acquitted and the appeals allowed. [Paras 11–13]

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I. ANALYSIS OF FACTS

1. Prosecution case

Para 1: The prosecution alleged that the deceased, accompanied by his son, employee, nephew and another villager, was proceeding towards his fields. The accused allegedly ambushed them and opened indiscriminate fire. The deceased was shot in the back and died from the firearm injury. The accused were prosecuted for offences under Sections 302 and 307 read with Section 149 IPC, with additional charges under Sections 147/148 IPC and Section 27 of the Arms Act against some accused.

2. Eyewitness version

Para 2: PW1, PW2 and PW7 claimed to be eyewitnesses. Their versions were broadly similar as to an ambush and firing but differed as to which accused fired the fatal shot. PW1 and PW2 attributed the firing to A7, whereas PW7 attributed the fatal shot to A4. PW8 also supported the version implicating A7, but that fact had not been stated by him in his Section 161 CrPC statement.

3. Inconsistency alone was not decisive

Para 3: The Supreme Court did not treat the discrepancies in chronology, by themselves, as sufficient to reject the eyewitnesses. The Court recognised that in an ambush involving indiscriminate firing and scattering of persons, witnesses cannot necessarily be expected to reproduce events in identical chronological order.

This is important: the Court did not acquit merely because of minor contradictions. The acquittal resulted from the cumulative effect of several serious deficiencies.

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II. FAILURE OF CORROBORATIVE EVIDENCE

4. No cartridges recovered

Paras 3–4: Although the prosecution alleged indiscriminate firing, no cartridges were recovered from the scene. The Investigating Officer did not establish that any search for cartridges had even been conducted. The Court considered this significant because indiscriminate firing would ordinarily be expected to leave more than one cartridge at the scene.

5. Bullet and weapons not recovered

Para 4: The bullet which entered and exited the deceased's body was not recovered. There was also no attempt to recover the weapons allegedly used by the accused.

6. Blood-stained earth not chemically examined

Para 5: Blood-stained earth had been collected from the scene but was not sent for chemical analysis. Consequently, there was no scientific evidence connecting the alleged scene of occurrence with the homicide.

7. Scene of occurrence itself became doubtful

Para 5: The Court observed that, apart from the oral testimony, there was no “tell-tale” evidence establishing the alleged ambush, firing and murder at the asserted location. The eyewitnesses had not clearly identified the scene in their prior statements, and the timing of the inquest and recording of the FIS further increased suspicion.

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III. EYewitness EVIDENCE

8. Identification under alleged circumstances

Para 5: PW1's police statement revealed that immediately before the first shot he heard no noise, and thereafter everyone became panic-stricken and ran helter-skelter. The Supreme Court considered this circumstance relevant to the possibility of the witnesses accurately identifying the assailants. PW1 had also not named the accused in his police statement or stated that the accused had surrounded the victims.

9. Presence of eyewitnesses itself doubtful

Para 6: PW1 was the deceased's employee, PW2 a relative and PW7 his son. Their presence was considered doubtful, particularly because the prosecution alleged indiscriminate firing but none of these eyewitnesses suffered any injury.

10. Related witnesses are not automatically interested witnesses

The judgment does not lay down a rule that related witnesses must be rejected.

Rather, the Court expressly recognised that related witnesses cannot always be categorised as interested witnesses. Here, however, their relationship with the deceased, doubtful presence, admitted local tension and absence of independent corroboration collectively created serious doubt. [Paras 5–10]

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IV. ANALYSIS OF MOTIVE

11. Alleged kidnapping motive unproved

Para 6: The prosecution alleged that a girl from the accused's village had been kidnapped by a boy from the deceased's village and that the deceased had refused to help locate them. The Court found no evidence establishing the alleged kidnapping or connecting the deceased with the alleged incident.

12. Political rivalry also unproved

The prosecution additionally alleged political rivalry arising from an election. The Court found nothing establishing such rivalry between the deceased and A1's father. Significantly, although A1's father was projected as central to the motive, he himself was not made an accused.

13. Motive could not strengthen prosecution case

The alleged motive was therefore characterised as unconvincing and could not provide a reliable foundation for conviction.

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V. MEDICAL EVIDENCE VERSUS OCULAR EVIDENCE

14. Postmortem established homicide

Para 7: The Court accepted that the deceased had been murdered. The doctor found an entry wound and an exit wound caused by a bullet, together with abrasions resulting from the body falling to the ground.

Thus, the factum of death by firearm was not in dispute.

The dispute was who caused it and whether the prosecution's version of the occurrence was reliable.

15. Medical evidence contradicted prosecution narrative

Para 7: The doctor's evidence indicated that the deceased was apparently in a sitting position when shot from the back, and that the shot was fired from approximately three to four feet. The Court expressly observed that this expert evidence went against the eyewitness account.

16. Physical circumstances made prosecution version improbable

Para 10: The eyewitnesses said that five persons were walking in a straight line, with the deceased in front, while the accused allegedly approached from behind and fired. The Court considered it highly unlikely that the alleged ambush and firing could have occurred in the manner described, particularly in light of the medical evidence indicating a sitting position and close-range firing.

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VI. INVESTIGATION

17. Investigating Officer's evidence contradicted prosecution explanation

Para 8: The Government Advocate attempted to explain the absence of cartridges by suggesting that the victims had been walking along an uneven ridge surrounded by grass and crops. However, the Investigating Officer described the place of occurrence as a pedestrian lane, with recently ploughed fields on either side.

Thus, the prosecution's explanation for the absence of physical evidence was itself contradicted by the investigating evidence.

18. Other important investigative omissions

Para 8: The Investigating Officer:

• did not send blood-stained earth for laboratory testing;
• did not seize the clothes of the deceased;
• did not seize the clothes of the witnesses who allegedly carried the deceased to hospital; and
• did not examine the independent witness who was allegedly present.

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VII. HIGH COURT'S ERROR

19. Reliance upon an unproved complaint against the Investigating Officer

Para 9: The High Court relied upon a complaint alleging collusion by the Investigating Officer and used it to explain the poor investigation. The Supreme Court pointed out that the alleged complaint had not been elicited from the eyewitnesses and, in any event, did not explain or cure the deficiencies in the prosecution evidence.

20. High Court improperly brushed aside medical evidence

Para 9: The High Court accepted the eyewitness evidence as consistent and effectively disregarded the medical opinion suggesting that the deceased had been shot while sitting. Its reasoning that the shooting hand might shake and that the victim's movement could affect the shape of the injury was characterised by the Supreme Court as conjectural.

21. Conviction could not rest on unsupported assumptions

The High Court ultimately concluded that the accused had ambushed the deceased and fired indiscriminately, establishing the common object/intention to commit murder, essentially on the eyewitness testimony. The Supreme Court found that approach unsustainable when the ocular evidence itself was rendered doubtful by medical, physical and investigative circumstances. [Paras 9–10]

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VIII. LAW AND LEGAL PRINCIPLES

22. Proof beyond reasonable doubt

Para 11: The prosecution bears the burden of establishing culpability beyond reasonable doubt. Where the principal eyewitness evidence does not inspire confidence and there is no reliable corroborative evidence, conviction cannot be sustained.

23. Defective investigation does not automatically benefit accused

The Court carefully distinguished between:

Faulty investigation and absence of reliable prosecution evidence.

A faulty investigation does not, by itself, entitle an accused to acquittal. But where the prosecution has otherwise failed to produce reliable evidence, the Court cannot presume guilt merely because the Investigating Officer was recalcitrant or allegations of collusion were made against him. [Para 11]

24. Court cannot repair evidentiary gaps by presumption

This is one of the strongest propositions emerging from the judgment:

An investigative failure cannot be converted into substantive proof of guilt.

The Court cannot use allegations against the Investigating Officer to assume that the missing evidence would necessarily have supported the prosecution.

25. Cumulative assessment of evidence

The Court's approach was not to isolate each discrepancy. It examined the cumulative effect of:

• doubtful presence of eyewitnesses;
• their relationship with the deceased;
• local hostility;
• non-examination of independent witness;
• absence of cartridges;
• absence of weapon recovery;
• non-recovery of the bullet;
• failure to chemically examine blood-stained earth;
• failure to seize clothes;
• doubtful scene of occurrence;
• unexplained sequence concerning inquest and FIS;
• unproved motive; and
• medical evidence inconsistent with ocular testimony.

Together these circumstances rendered the prosecution case highly doubtful. [Paras 5–11]

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IX. CONCLUSION

26. Prosecution failed to prove culpability

Para 11: The Supreme Court held that the prosecution had not established the culpability of the accused beyond reasonable doubt. The eyewitness testimony did not inspire confidence and there was an almost complete absence of reliable recoveries or seizures.

27. Not merely a faulty investigation

The Court made the stronger observation that the case was not merely one of faulty investigation, but effectively one in which no proper investigation had been carried out. Even the fact that the inquest preceded the recording of the FIS was treated as a serious circumstance.

28. Final holding

Paras 11–13: Since there was no reliable evidence establishing the accused's guilt, the Court acquitted the accused, directed their release forthwith if not required in any other case, cancelled bail bonds where applicable, and allowed the appeals.

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RATIO DECIDENDI

Where the prosecution relies substantially upon eyewitness testimony, but the witnesses' presence is doubtful, their testimony is materially inconsistent with medical evidence, independent witnesses are withheld, material physical evidence is not recovered or scientifically examined, the alleged motive is unproved, and the investigation itself fails to establish the scene and manner of occurrence, the prosecution cannot be said to have proved guilt beyond reasonable doubt. The Court cannot cure such evidentiary deficiencies by relying upon an allegation that the Investigating Officer conducted a collusive investigation or by presuming facts favourable to the prosecution.

Criminal trial — Eyewitness evidence — Medical and circumstantial evidence — Where ocular testimony is rendered doubtful by medical evidence, absence of material recoveries, non-examination of independent witnesses, doubtful presence of eyewitnesses and unproved motive, conviction cannot rest on conjecture; prosecution must independently establish guilt beyond reasonable doubt, and investigative lapses cannot be converted into proof of culpability. [Paras 7–11]

where the finding is unsupported by evidence, where the overwhelming weight of evidence contradicts it, or where it is wholly unwarranted by the evidence. Such a finding may constitute an error of law and become amenable to certiorari.

 

SHRI PRAKASH NARAIN SHARMA v. M/S. BURMAH SHELL CO-OPERATIVE HOUSING SOCIETY (REGD.) & ORS.

Civil Appeal Nos. 10693–10694 of 2026 — Supreme Court of India — Judgment dated 31 August 2026
2026 INSC 927

HEADNOTE

Constitution of India — Articles 226 and 227 — Writ of Certiorari — Concurrent orders of statutory authorities — Scope of interference — Certiorari is supervisory and not appellate — Reappreciation of evidence impermissible, but interference justified where finding is perverse, unsupported by evidence, or constitutes an error of law apparent on the face of the record — Failure to consider material documentary evidence may justify interference. [Paras 12–15]

Co-operative Society — Membership — Claim of membership based merely on inclusion of name in membership list — Earlier resignation and acceptance thereof — Subsequent application for membership rejected — No membership certificate or resolution admitting applicant — Mere inclusion of name in a list could not establish continuing membership. [Paras 8–11, 14]

Arbitrator — Failure to consider material documents — Presumption of continuing membership — Perversity — Arbitrator ignored resignation accepted by Managing Committee, transfer of share, subsequent rejection of membership application and rejection of request to deposit plot amount — Finding that claimant continued as member throughout his lifetime was unsupported and perverse. [Para 14]

Co-operative Society — Allotment of plot — Membership a foundational requirement — Person never admitted as member not entitled to claim allotment — Equitable considerations — Existence of four prior claimants was an additional ground for refusing allotment. [Paras 16–17]

Certiorari — Concurrent findings — Ordinarily writ court does not disturb findings of fact — Exception where findings are based on no evidence, surmises or conjectures, or are wholly unwarranted by the evidence — Such perversity constitutes an error of law amenable to certiorari. [Paras 12–13]

Held: The High Court was justified in exercising certiorari jurisdiction because the Arbitrator and Tribunal had failed to consider material documentary evidence and had proceeded on an erroneous presumption of continuing membership. The civil appeals were accordingly dismissed. [Paras 15, 18]

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I. ANALYSIS OF FACTS

1. Original claim for allotment of plot

Para 2: S.N. Sharma claimed to be a member of the Burmah Shell Co-operative Housing Society and, on that basis, claimed entitlement to allotment of a plot. He alleged illegal deprivation and initiated proceedings before the Joint Registrar, which were referred to arbitration. An earlier ex-parte award in his favour was eventually set aside by the Supreme Court, with directions to continue the arbitration from the stage at which the Society had been proceeded ex parte. [Paras 2–3]

2. Award after remand

Para 3: After remand, the Registrar/Arbitrator held that the original claimant was a member of the Society and had performed his obligations for securing a plot. The Arbitrator therefore directed allotment of a plot to his legal heir, subject to transfer of membership and payment of the cost of the land. The Tribunal affirmed the award.

3. Society's contrary case

Para 4: The Society maintained that the claimant had resigned from membership in 1951, that his resignation had been accepted, and that his subsequent attempt to obtain membership in 1952 had been rejected. Consequently, according to the Society, he was never a member thereafter and could not claim allotment.

4. High Court's examination of the record

Para 4: The Delhi High Court found that the Registrar and Tribunal had failed to consider relevant documentary material. It concluded that the claimant had not been admitted as a member after his resignation and that there were also four members having prior claims to allotment. The High Court therefore set aside both orders.

5. Documents subsequently identified as decisive

Para 14: The Supreme Court specifically identified the material that had been overlooked:

1. resignation of the original claimant;
2. acceptance of resignation in the Managing Committee Minutes dated 05.05.1951;
3. transfer of his share to another member on 18.08.1951;
4. rejection of his subsequent membership application in the Minutes dated 05.11.1952; and
5. rejection, as late as 04.11.1979, of his request to deposit the amount for a plot.

These documents were not merely peripheral. They went directly to the foundational question of whether the claimant was a member at all.

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II. CORE ISSUE

6. Principal legal question

Para 8: The Supreme Court identified the central question as whether the High Court, exercising jurisdiction under Articles 226 and 227, was justified in interfering with the concurrent orders of the Arbitrator and Tribunal, or whether such interference exceeded the permissible scope of certiorari jurisdiction.

The underlying factual issue was:

Was S.N. Sharma actually a member of the Society after 1951 and, consequently, entitled to claim allotment of a plot?

The jurisdictional issue was:

Could the High Court interfere with the concurrent findings when those findings had been reached without considering material documentary evidence?

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III. LAW LAID DOWN

7. Certiorari is supervisory, not appellate

Para 12: The Supreme Court reiterated that the jurisdiction of certiorari is supervisory and not appellate. A writ court does not ordinarily assume the role of an appellate court or reappreciate evidence.

8. Jurisdictional error permits interference

Para 12: Certiorari may issue where there is a jurisdictional error, including failure to observe jurisdictional limits, procedural illegality, violation of natural justice, or an error of law apparent on the face of the record.

9. Perverse finding may amount to error of law

Para 12: Although an ordinary erroneous finding of fact is ordinarily outside certiorari jurisdiction, the position changes where the finding is unsupported by evidence, where the overwhelming weight of evidence contradicts it, or where it is wholly unwarranted by the evidence. Such a finding may constitute an error of law and become amenable to certiorari.

10. No evidence / surmises / conjectures

Para 12: The Court, relying upon Central Council for Research in Ayurvedic Sciences v. Bikartan Das, reiterated that findings based on no evidence, or purely on surmises and conjectures, may be challenged through certiorari because they can constitute errors of law.

11. Patent error, not merely wrong decision

Para 12: Certiorari corrects a patent error and not merely a decision which the writ court considers wrong. The jurisdiction remains supervisory rather than appellate.

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IV. APPLICATION OF LAW TO FACTS

12. This was not a case of mere reappreciation of evidence

Para 13: The Supreme Court held that the limited scope of certiorari did not prevent interference where an error of law was evident from the record. If a finding is made without supporting evidence or documents, the High Court is entitled to interfere because such a finding may amount to an error of law.

This distinction is crucial:

Ordinary erroneous finding of fact → ordinarily no certiorari.

Finding ignoring decisive documentary evidence / unsupported by record / perverse → certiorari permissible.

13. Arbitrator ignored documents directly disproving membership

Para 14: The Arbitrator had before it documentary evidence showing:

• resignation;
• acceptance of resignation;
• transfer of the claimant's share;
• rejection of the later membership application; and
• rejection of the request to deposit the plot amount.

Yet it proceeded on the assumption that the claimant continued to be a member throughout his lifetime.

14. Presumption could not replace documentary proof

Para 14: The critical defect in the Arbitrator's reasoning appears in its statement that the claimant's resignation and alleged subsequent re-entry were not tenable and that it had to be presumed that he continued to be a member because his name appeared in the list of members.

The Supreme Court treated this reasoning as perverse because the documentary record contradicted the presumption.

15. Tribunal compounded the defect

Para 15: The Tribunal affirmed the Arbitrator's conclusion in a short six-paragraph order. Since the foundational finding of membership itself was defective, the Tribunal's affirmance did not cure the defect. The High Court was therefore justified in interfering.

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V. EQUITABLE CONSIDERATION

16. Prior claimants

Para 16: The High Court also considered that four other members had prior claims to allotment. The Supreme Court expressly approved this consideration as an additional reason for declining to interfere with the High Court's decision.

Thus, even apart from the membership defect, the claimant's claim could not be treated in isolation from the competing claims of prior members.

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VI. CONSEQUENCE OF ABSENCE OF MEMBERSHIP

17. No membership — no enforceable claim to allotment

Para 17: Once the Court concluded that the original claimant had never been admitted as a member, the claim to allotment of a plot necessarily failed. The Court therefore considered it unnecessary to determine whether a plot was actually available.

This is an important logical sequence:

No valid membership → no entitlement to allotment → availability of plot becomes irrelevant.

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VII. CONCLUSION / RATIO DECIDENDI

18. High Court correctly exercised certiorari jurisdiction

Paras 15 & 18: The Supreme Court held that the High Court did not exceed its jurisdiction under Articles 226 and 227. Its interference was justified because the statutory authorities had ignored material documentary evidence and had arrived at a perverse finding of continuing membership. The civil appeals were dismissed.

Ratio

A High Court exercising certiorari jurisdiction does not ordinarily reappreciate evidence or substitute its own view for a finding of fact reached by a competent statutory authority. However, where the authority ignores material documentary evidence which goes to the root of the dispute and consequently records a finding unsupported by the record or contrary to the overwhelming evidence, such perversity constitutes an error of law warranting interference by certiorari.

Final legal proposition

The judgment therefore does not dilute the limited scope of Articles 226/227. Rather, it reinforces the distinction between:

mere error of fact, which is ordinarily immune from certiorari,

and

a perverse finding arising from disregard of material evidence, which becomes an error of law apparent from the record and is therefore amenable to certiorari.

Result: Civil Appeals dismissed; High Court judgment sustained; no order as to costs.