the word ‘payable’ in Section 40(a)(ia) would mean only when the amount is payable and not when it is actually paid. Grammatically, it may be accepted that the two words, i.e. ‘payable’ and ‘paid’, denote different meanings. = The liability to deduct tax at source under the provisions of Chapter XVII is mandatory. A person responsible for paying any sum is also liable to deposit the amount in the Government account. All the sections in Chapter XVII-B require a person to deduct the tax at source at the rates specified therein. The requirement in each of the sections is preceded by the word “shall”. The provisions are, therefore, mandatory. There is nothing in any of the sections that would warrant our reading the word “shall” as “may”. The point of time at which the deduction is to be made also establishes that the provisions are mandatory. For instance, under Section 194C, a person responsible for paying the sum is required to deduct the tax “at the time of credit of such sum to the account of the contractor or at the time of the payment thereof. ……”= In view of the aforesaid discussion, we hold that the view taken by the High Courts of Punjab & Haryana, Madras and Calcutta is the correct view and the judgment of the Allahabad High Court in CIT v. Vector Shipping Services (P) Ltd., (2013) 357 ITR 642 did not decide the question of law correctly. Thus, insofar as the judgment of the Allahabad High Court is concerned, we overrule the same. Consequences of the aforesaid discussion will be to answer the question against the appellant/assessee thereby approving the view taken by the High Court.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5512 OF 2017
|M/S. PALAM GAS SERVICE |…..APPELLANT(S) |
|VERSUS | |
|COMMISSIONER OF INCOME TAX |…..RESPONDENT(S) |
J U D G M E N T
A.K. SIKRI, J.

The neat question which arises for consideration in this appeal
relates to the interpretation of Section 40(a)(ia) of the Income Tax Act,
1961 (hereinafter referred to as the ‘Act’). Section 197C of the Act has
also some bearing on the issue involved.

Section 40 of the Act enumerates certain situations wherein expenditure
incurred by the assessee, in the course of his business, will not be
allowed to be deducted in computing the income chargeable under the head
‘Profits and Gains from Business or Profession’. One such contingency is
provided in clause (ia) of sub-section (a) of Section 40. This provision
reads as under:
“S. 40 – Amounts not deductible:

Notwithstanding anything to the contrary in Sections 30 to [38], the
following amounts shall not be deducted in computing the income chargeable
under the head “Profits and gains of business or profession”,—

xxx xxx xxx

(ia) any interest, commission or brokerage, fees for professional services
or fees for technical services payable to a resident, or amounts payable to
a contractor or sub-contractor, being resident for carrying out any work
(including supply of labour for carrying out any work), on which tax is
deductible at source under Chapter XVII-B and such tax has not been
deducted or, after deduction, has not been paid during the previous year,
or in the subsequent year before the expiry of the time prescribed under
sub-section (1) of Section 200;

Provided that where in respect of any such sum, tax has been deducted in
any subsequent year or has been deducted in the previous year but paid in
any subsequent year after the expiry of the time prescribed under sub-
section (1) of section 200, such sum shall be allowed as a deduction in
computing the income of the previous year in which such tax has been paid.

xxx xxx xxx”
As per clause (ia), certain payments made, which includes amounts payable
to a contractor or sub-contractor, would not be allowed as expenditure in
case the tax is deductible at source on the said payment under Chapter
XVIIB of the Act and such tax has not been deducted or, after deduction,
has not been paid during the previous year or in the subsequent year before
the expiry of the time prescribed under sub-section (1) of Section 200 of
the Act. In the instant case, certain payments were made by the appellant
assessee, in the Assessment Year 2006-2007 but the tax at source was not
deducted and deposited. We may point out here itself that as per Section
194C of the Act, payments to contractors and sub-contractors are subject to
tax deduction at source. The Income Tax Department/Revenue has, therefore,
not allowed the amounts paid to the sub-contractors as deduction while
computing the income chargeable to tax at the hands of the assessee in the
said Assessment Year.

It can be seen that Section 40(a)(ia) uses the expression ‘payable’ and on
that basis the question which is raised for consideration is:
“Whether the provisions of Section 40(a)(ia) shall be attracted when the
amount is not ‘payable’ to a contractor or sub-contractor but has been
actually paid?”
Some facts which will have bearing on the aforesaid issue need to be
mentioned at this stage:
The appellant-assessee is engaged in the business of purchase and
sale of LPG cylinders under the name and style of M/s. Palam Gas Service at
Palampur. During the course of assessment proceedings, it was noticed by
the Assessing Officer that the main contract of the assessee for carriage
of LPG was with the Indian Oil Corporation, Baddi. The assessee had
received the total freight payments from the IOC Baddi to the tune of
Rs.32,04,140/-. The assessee had, in turn, got the transportation of LPG
done through three persons, namely, Bimla Devi, Sanjay Kumar and Ajay to
whom he made the freight payment amounting to Rs. 20,97,689/-. The
Assessing Officer observed that the assessee had made a sub-contract with
the said three persons within the meaning of Section 194C of the Act and,
therefore, he was liable to deduct tax at source from the payment of Rs.
20,97,689/-. On account of his failure to do so the said freight expenses
were disallowed by the Assessing Officer as per the provisions of Section
40(a)(ia) of the Act. Against the order of the Assessing Officer, the
assessee preferred an appeal before the Commissioner of Income Tax
(Appeals), Shimla who vide its order dated August 17, 2012 upheld the order
dated November 30, 2011. The matter thereafter came up in appeal before
the Income Tax Appellate Tribunal (for short ‘ITAT’) which too met with the
same fate.
In further appeal to the High Court under Section 260A of the Act,
the outcome remained unchanged as the High Court of Himachal Pradesh also
dismissed the appeal affirming the order of the ITAT.

It may be pertinent to observe that the question raised now and formulated
above was specifically raised before the authorities below, including the
High Court.

The question is, as noted above, when the word used in Section 40(a)(ia) is
‘payable’, whether this Section would cover only those contingencies where
the amount is due and still payable or it would also cover the situations
where the amount is already paid but no advance tax was deducted thereupon.
This issue has come up for hearing before various High Courts and there
are divergent views of the High Courts there upon. In fact, most of the
High Courts have taken the view that the aforesaid provision would cover
even those cases where the amount stands paid. This is the view of the
Madras, Calcutta and Gujarat High Courts. Contrary view is taken by the
Allahabad High Court. In a recent judgment, the Punjab & Haryana High
Court took note of the judgments of the aforesaid High Courts and concurred
with the view taken by the Madras, Calcutta and Gujarat High Courts and
showed its reluctance to follow the view taken by the Allahabad High Court.
In this scenario, we would like to first discuss the reasons given by the
High Courts in two sets of judgments, arriving at a contrary conclusion.
Before that, we would also like to reproduce relevant portions of Section
194C and 200 of the Act as well as Rule 30(2) of the Income Tax Rules,
since they are also relevant to decide the controversy. These provisions
make the following reading:
“194-C. Payments to contractors.—(1) Any person responsible for paying any
sum to any resident (hereafter in this section referred to as the
contractor) for carrying out any work (including supply of labour for
carrying out any work) in pursuance of a contract between the contractor
and a specified person shall, at the time of credit of such sum to the
account of the contractor or at the time of payment thereof in cash or by
issue of a cheque or draft or by any other mode, whichever is earlier,
deduct an amount equal to—
.……… ……. …… ………

200. Duty of person deducting tax.—(1) Any person deducting any sum in
accordance with the foregoing provisions of this chapter] shall pay within
the prescribed time, the sum so deducted to the credit of the Central
Government or as the Board directs.

(2) Any person being an employer, referred to in subsection (1-A) of
Section 192 shall pay, within the prescribed time, the tax to the credit of
the Central Government or as the Board directs.

(3) Any person deducting any sum on or after the 1st day of April, 2005 in
accordance with the foregoing provisions of this chapter or, as the case
may be, any person being an employer referred to in sub-section (1-A) of
Section 192 shall, after paying the tax deducted to the credit of the
Central Government within the prescribed time, prepare such statements for
such period as may be prescribed] and deliver or cause to be delivered to
the prescribed income tax authority or the person authorised by such
authority such statement in such form and verified in such manner and
setting forth such particulars and within such time as may be prescribed.”
Rule 30(2) of the Income Tax Rules which stipulates the time prescribed for
payment of the tax deducted to the credit of the Central Government as
required by Section 200(1) and relevant portion thereof reads as under:
“Time and mode of payment to Government account of tax deducted at source
or tax paid under sub-section (1A) of section 192.

30(1) All sums deducted in accordance with the provisions of Chapter XVII-B
by an office of the Government shall be paid to the credit of the Central
Government-
.….. ………. …….. ……..

(2) All sums deducted in accordance with the provisions of Chapter XVII-B
by deductors other than an office of the Government shall be paid to the
credit of the Central Government-

on or before 30th day of April where the income or amount is credited or
paid in the month of March; and
in any other case, on or before seven days from the end of the month in
which-
the deduction is made; or
income-tax is due under sub-section(1A) of section 192.”

As per Section 194C, it is the statutory obligation of a person, who is
making payment to the sub-contractor, to deduct tax at source at the rates
specified therein. Plain language of the Section suggests that such a tax
at source is to be deducted at the time of credit of such sum to the
account of the contract or at the time of payment thereof, whichever is
earlier. Thus, tax has to be deducted in both the contingencies, namely ,
when the amount is credited to the account of the contractor or when the
payment is actually made. Section 200 of the Act imposes further obligation
on the person deducting tax at source, to deposit the same with the Central
Government or as the Board directs, within the prescribed time.
A conjoint reading of these two Sections would suggest that not only
a person, who is paying to the contractor, is supposed to deduct tax at
source on the said payment whether credited in the account or actual
payment made, but also deposit that amount to the credit of the Central
Government within the stipulated time. The time within which the payment
is to be deposited with the Central Government is mentioned in Rule 30(2)
of the Rules.

The Punjab & Haryana High Court in P.M.S. Diesels & Ors. v. Commissioner of
Income Tax – 2, Jalandhar & Ors., (2015) 374 ITR 562, has held these
provisions to be mandatory in nature with the following observations:
“13.  The liability to deduct tax at source under the provisions of Chapter
XVII is mandatory. A person responsible for paying any sum is also liable
to deposit the amount in the Government account. All the sections in
Chapter XVII-B require a person to deduct the tax at source at the rates
specified therein. The requirement in each of the sections is preceded by
the word “shall”. The provisions are, therefore, mandatory. There is
nothing in any of the sections that would warrant our reading the word
“shall” as “may”. The point of time at which the deduction is to be made
also establishes that the provisions are mandatory. For instance, under
Section 194C, a person responsible for paying the sum is required to deduct
the tax “at the time of credit of such sum to the account of the contractor
or at the time of the payment thereof. ……”
While holding the aforesaid view, the Punjab & Haryana High Court discussed
the judgments of the Calcutta and Madras High Courts, which had taken the
same view, and concurred with the same, which is clear from the following
discussion contained in the judgment of the Punjab & Haryana High Court:
“14. A Division Bench of the Calcutta High Court in Commissioner of Income
Tax v. Crescent Export Syndicate, (2013) 216 Taxman 258 (Calcutta) held:-

“13.…………… ……………… ……………

The term ‘shall’ used in all these sections make it clear that these are
mandatory provisions and applicable to the entire sum contemplated under
the respective sections. These sections do not give any leverage to the
assessee to make the payment without making TDS. On the contrary, the
intention of the legislature is evident from the fact that timing of
deduction of tax is earliest possible opportunity to recover tax, either at
the time of credit in the account of payee or at the time of payment to
payee, whichever is earlier.”

15. Ms. Dhugga invited our attention to a judgment of the Division Bench
of Madras High Court in Tube Investments of India Ltd. v. Assistant
Commissioner of Income-Tax (TDS), [2010] 325 ITR 610 (Mad). The Division
Bench referred to the statistics placed before it by the Department which
disclosed that TDS collection had augmented the revenue. The gross
collection of advance tax, surcharge, etc. was Rs. 2,75,857.70 crores in
the financial year 2008-09 of which the TDS component alone constituted Rs.
1,30,470.80 crores. The Division Bench observed that introduction of
Section 40(a)(ia) had achieved the objective of augmenting the TDS to a
substantial extent. The Division Bench also observed that when the
provisions and procedures relating to TDS are scrupulously applied, it also
ensured the identification of the payees thereby confirming the network of
assessees and that once the assessees are identified it would enable the
tax collection machinery to bring within its fold all such persons who are
liable to come within the network of tax payers. These objects also
indicate the legislative intent that the requirement of deducting tax at
source is mandatory.

16. The liability to deduct tax at source is, therefore, mandatory.”
The aforesaid interpretation of Sections 194C conjointly with Section 200
and Rule 30(2) is unblemished and without any iota of doubt. We, thus,
give our imprimatur to the view taken. As would be noticed and discussed
in little detail hereinafter, the Allahabad High Court, while interpreting
Section 40(a)(ia), did not deal with this aspect at all, even when it has a
clear bearing while considering the amplitude of the said provision.

In the aforesaid backdrop, let us now deal with the issue, namely, the word
‘payable’ in Section 40(a)(ia) would mean only when the amount is payable
and not when it is actually paid. Grammatically, it may be accepted that
the two words, i.e. ‘payable’ and ‘paid’, denote different meanings. The
Punjab & Haryana High Court, in P.M.S. Diesels & Ors., referred to above,
rightly remarked that the word ‘payable’ is, in fact, an antonym of the
word ‘paid’. At the same time, it took the view that it was not
significant to the interpretation of Section 40(a)(ia). Discussing this
aspect further, the Punjab & Haryana High Court first dealt with the
contention of the assessee that Section 40(a)(ia) relates only to those
assessees who follow the mercantile system and does not cover the cases
where the assessees follow the cash system. Those contention was rejected
in the following manner:
“19. There is nothing that persuades us to accept this submission. The
purpose of the section is to ensure the recovery of tax. We see no
indication in the section that this object was confined to the recovery of
tax from a particular type of assessee or assessees following a particular
accounting practice. As far as this provision is concerned, it appears to
make no difference to the Government as to the accounting system followed
by the assessees. The Government is interested in the recovery of taxes. If
for some reason, the Government was interested in ensuring the recovery of
taxes only from assessees following the mercantile system, we would have
expected the provision to so stipulate clearly, if not expressly. It is not
suggested that assessees following the cash system are not liable to deduct
tax at source. It is not suggested that the provisions of Chapter XVII-B do
not apply to assessees following the cash system. There is nothing in
Chapter XVII-B either that suggests otherwise.

20. Our view is fortified by the Explanatory Note to Finance Bill (No. 2)
of 2004. Sub-clause (ia) of clause (a) of Section 40 was introduced by the
Finance Bill (No. 2) of 2004 with effect from 01.04.2005. The Explanatory
Note to Finance Bill-2004 stated:-

“….. ….. ….. ….. ..
With a view to augment compliance of TDS provisions, it is proposed to
extend the provisions of section 40(a)(i) to payments of interest,
commission or brokerage, fees for professional services or fees for
technical services to residents, and payments to a resident contractor or
sub-contractor for carrying out any work (including supply of labour for
carrying out any work), on which tax has not been deducted or after
deduction, has not been paid before the expiry of the time prescribed under
sub-section(1) of section 200 and in accordance with the other provisions
of Chapter XVII-B. ……”

21. The adherence to the provisions ensures not merely the collection of
tax but also enables the authorities to bring within their fold all such
persons who are liable to come within the network of tax payers. The
intention was to ensure the collection of tax irrespective of the system of
accounting followed by the assessees. We do not see how this dual purpose
of augmenting the compliance of Chapter XVII and bringing within the
Department’s fold tax payers is served by confining the provisions of
Section 40(a)(ia) to assessees who follow the mercantile system. Nor do we
find anything that indicates that for some reason the legislature intended
achieving these objectives only by confining the operation of Section
40(a)(ia) to assessees who follow the mercantile system.

22. The same view was taken by a Division Bench of the Calcutta High Court
in Commissioner of Income Tax v. Crescent Export Syndicate, (supra). It was
held:-

“12.3. It is noticeable that Section 40(a) is applicable irrespective of
the method of accounting followed by an assessee. Therefore, by using the
term ‘payable’ legislature included the entire accrued liability. If
assessee was following mercantile system of accounting, then the moment
amount was credited to the account of payee on accrual of liability, TDS
was required to be made but if assessee was following cash system of
accounting, then on making payment TDS was to be made as the liability was
discharged by making payment. The TDS provisions are applicable both in the
situation of actual payment as well of the credit of the amount. It becomes
very clear from the fact that the phrase, ‘on which tax is deductible at
source under Chapter XVII-B’, was not there in the Bill but incorporated in
the Act. This was not without any purpose.”
We approve the aforesaid view as well. As a fortiorari, it follows that
Section 40(a)(ia) covers not only those cases where the amount is payable
but also when it is paid. In this behalf, one has to keep in mind the
purpose with which Section 40 was enacted and that has already been noted
above. We have also to keep in mind the provisions of Sections 194C and
200. Once it is found that the aforesaid Sections mandate a person to
deduct tax at source not only on the amounts payable but also when the sums
are actually paid to the contractor, any person who does not adhere to this
statutory obligation has to suffer the consequences which are stipulated in
the Act itself. Certain consequences of failure to deduct tax at source
from the payments made, where tax was to be deducted at source or failure
to pay the same to the credit of the Central Government, are stipulated in
Section 201 of the Act. This Section provides that in that contingency,
such a person would be deemed to be an assessee in default in respect of
such tax. While stipulating this consequence, Section 201 categorically
states that the aforesaid Sections would be without prejudice to any other
consequences which that defaulter may incur. Other consequences are
provided under Section 40(a)(ia) of the Act, namely, payments made by such
a person to a contractor shall not be treated as deductible expenditure.
When read in this context, it is clear that Section 40(a)(ia) deals with
the nature of default and the consequences thereof. Default is relatable
to Chapter XVIIB (in the instant case Sections 194C and 200, which
provisions are in the aforesaid Chapter). When the entire scheme of
obligation to deduct the tax at source and paying it over to the Central
Government is read holistically, it cannot be held that the word ‘payable’
occurring in Section 40(a)(ia) refers to only those cases where the amount
is yet to be paid and does not cover the cases where the amount is actually
paid. If the provision is interpreted in the manner suggested by the
appellant herein, then even when it is found that a person, like the
appellant, has violated the provisions of Chapter XVIIB (or specifically
Sections 194C and 200 in the instant case), he would still go scot free,
without suffering the consequences of such monetary default in spite of
specific provisions laying down these consequences. The Punjab & Haryana
High Court has exhaustively interpreted Section 40(a(ia) keeping in mind
different aspects. We would again quote the following paragraphs from the
said judgment, with our complete approval thereto:
“26. Further, the mere incurring of a liability does not require an
assessee to deduct the tax at source even if such payments, if made, would
require an assessee to deduct the tax at source. The liability to deduct
tax at source under Chapter XVII-B arises only upon payments being made or
where so specified under the sections in Chapter XVII, the amount is
credited to the account of the payee. In other words, the liability to
deduct tax at source arises not on account of the assessee being liable to
the payee but only upon the liability being discharged in the case of an
assessee following the cash system and upon credit being given by an
assessee following the mercantile system. This is clear from every section
in Chapter XVII.

27. Take for instance, the case of an assessee, who follows the cash
system of accounting and where the assessee who though liable to pay the
contractor, fails to do so for any reason. The assessee is not then liable
to deduct tax at source. Take also the case of an assessee, who follows the
mercantile system. Such an assessee may have incurred the liability to pay
amounts to a party. Such an assessee is also not bound to deduct tax at
source unless he credits such sums to the account of the party/payee, such
as, a contractor. This is clear from Section 194C set out earlier. The
liability to deduct tax at source, in the case of an assessee following the
cash system, arises only when the payment is made and in the case of an
assessee following the mercantile system, when he credits such sum to the
account of the party entitled to receive the payment.

28. The government has nothing to do with the dispute between the assessee
and the payee such as a contractor. The provisions of the Act including
Section 40 and the provisions of Chapter XVII do not entitle the tax
authorities to adjudicate the liability of an assessee to make payment to
the payee/other contracting party. The appellant’s submission, if accepted,
would require an adjudication by the tax authorities as to the liability of
the assessee to make payment. They would then be required to investigate
all the records of an assessee to ascertain its liability to third parties.
This could in many cases be an extremely complicated task especially in the
absence of the third party. The third party may not press the claim. The
parties may settle the dispute, if any. This is an exercise not even
remotely required or even contemplated by the section.”
As mentioned above, the Punjab & Haryana High Court found support from the
judgments of the Madras and Calcutta High Courts taking identical view and
by extensively quoting from the said judgments.

Insofar as judgment of the Allahabad High Court is concerned, reading
thereof would reflect that the High Court, after noticing the fact that
since the amounts had already been paid, it straightaway concluded, without
any discussion, that Section 40(a)(ia) would apply only when the amount is
‘payable’ and dismissed the appeal of the Department stating that the
question of law framed did not arise for consideration. No doubt, the
Special Leave Petition thereagainst was dismissed by this Court in limine.
However, that would not amount to confirming the view of the Allahabad High
Court (See V.M. Salgaocar & Bros. (P) Ltd. v. Commissioner of Income Tax,
(2000) 243 ITR 383 and Supreme Court Employees Welfare Association v. Union
of India, (1989) 4 SCC 187.

In view of the aforesaid discussion, we hold that the view taken by the
High Courts of Punjab & Haryana, Madras and Calcutta is the correct view
and the judgment of the Allahabad High Court in CIT v. Vector Shipping
Services (P) Ltd., (2013) 357 ITR 642 did not decide the question of law
correctly. Thus, insofar as the judgment of the Allahabad High Court is
concerned, we overrule the same. Consequences of the aforesaid discussion
will be to answer the question against the appellant/assessee thereby
approving the view taken by the High Court.

The appeal is, accordingly, dismissed with costs.
………………………………………J.
(A.K. SIKRI)

………………………………………J.
(ASHOK BHUSHAN)

NEW DELHI;
MAY 03, 2017.

Posted in Uncategorized

conviction of the petitioner for the offences punishable under Sections 302, 363, 367, 376(2)(f) and 201 IPC and various sentences imposed upon the petitioner including death sentence under Section 302 IPC and life imprisonment under Section 376(2)(f) IPC. In view of the decision of this Court in Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India and others.[1], these review petitions were listed in Court for oral hearing.= Principles (1) The court has to apply the test to determine, if it was the “rarest of rare” case for imposition of a death sentence. (2) In the opinion of the court, imposition of any other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice. (3) Life imprisonment is the rule and death sentence is an exception. (4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations. (5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime = after the Judgment under review, the petitioner has completed Bachelors Preparatory Programme offered by the Indira Gandhi National Open University enabling him to prepare for Bachelor level study and that he has also completed the Gandhi Vichar Pariksha and had participated in drawing competition organized sometime in January 2016. It is asserted that the jail record of the petitioner is without any blemish. The matter is not contested as regards Conditions 1, 2, 5, 6 and 7 as stated in paragraph 206 of the decision in Bachan Singh (supra) but what is now being projected is that there is a possibility of the accused being reformed and rehabilitated. Though these attempts on part of the petitioner are after the Judgment under review, we have considered the material in that behalf to see if those circumstances warrant a different view. We have given anxious consideration to the material on record but find that the aggravating circumstances namely the extreme depravity and the barbaric manner in which the crime was committed and the fact that the victim was a helpless girl of four years clearly outweigh the mitigating circumstances now brought on record. Having taken an overall view of the matter, in our considered view, no case is made out to take a different view in the matter. We, therefore, affirm the view taken in the Judgment under review and dismiss the present Review Petitions..

Reportable
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Review Petition (Crl.) Nos.637-638 of 2015

IN

Criminal Appeal Nos.2486-2487 of 2014
Vasanta Sampat Dupare ….. Petitioner

Versus

State of Maharashtra …. Respondent

J U D G M E N T
Uday Umesh Lalit, J.

1. These Review Petitions are directed against the Judgment and Order
dated 26.11.2014 passed by this Court in Criminal Appeal Nos.2486-87 of
2014 affirming conviction of the petitioner for the offences punishable
under Sections 302, 363, 367, 376(2)(f) and 201 IPC and various sentences
imposed upon the petitioner including death sentence under Section 302 IPC
and life imprisonment under Section 376(2)(f) IPC. In view of the decision
of this Court in Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India
and others.[1], these review petitions were listed in Court for oral
hearing.

2. The facts leading to the filing of criminal appeals in this Court
including the nature and quality of evidence on record have been dealt with
and considered in the Judgment of this Court dated 26.11.2014[2]. The
charge against the petitioner was that the victim, a minor girl of four
years was raped and battered to death by the petitioner. The petitioner
allegedly lured the victim by giving her chocolates, kidnapped her and
after satisfying his lust caused crushing injuries to her with the help of
stones weighing about 8.5 kg and 7.5 kg. The prosecution relied upon the
evidence of PW2 Manisha, PW3 Minal, PW5 Vandana and PW6 Baby Sharma who had
seen the petitioner taking away the victim on a bicycle on the fateful day.
In his disclosure statement under Section 27 of the Evidence Act the
petitioner had shown the place where dead body of the victim was lying and
the tap where he had washed his blood stained clothes. The medical
evidence on record was dealt with in paragraph 14 of the Judgment under
review as under :-

14. According to the doctor, he had found during internal examination
that under scalp haematoma was present over left frontal and right frontal
region of size 4cm × 4cm, dark red, the frontal bone was fractured and
depressed, fracture line extended up to occipital bone through right
temporal and parietal bone fracture on interior and middle cranial side.
The subarachnoid haemorrhage was present all over the brain surface and
meninges were congested. In his opinion, the cause of death was head
injury, associated with the injury on the genital region. He has testified
that the two stones that were sent to him in sealed cover along with the
requisition, Ext.62, for opinion, could have been used to cause the
injuries on the victim. He has weighed the stones, which are, 8.5kg and
7.5kg, and has opined that there had been forceful sexual intercourse.”
3. After taking into account the evidence and the circumstances on
record, this Court in the Judgment under review concluded as under:-

“On a critical analysis of the evidence on record, we are convinced
that the circumstances that have been clearly established are that the
appellant was seen in the courtyard where the minor girl and other children
were playing; that the appellant was seen taking the deceased on his
bicycle; that he had gone to the grocery shop owned by PW-6 to buy Mint
chocolate along with her; that the accused had told PW2 that the child was
the daughter of his friend and he was going to ‘Tekdi-Wadi’ along with the
girl; that the appellant had led to discovery of the dead body of the
deceased, the place where he had washed his clothes and at his instance the
stones smeared with blood were recovered; that the medical report clearly
indicates about the injuries sustained by the deceased on her body; that
the injuries sustained on the private parts have been stated by the doctor
to have been caused by forcible sexual intercourse; that the stones that
were seized were smeared with blood and the medical evidence corroborates
the fact that injuries could have been caused by battering with stones;
that the chemical analysis report shows that the blood group found on the
clothes of the appellant; that the appellant has not offered any
explanation with regard to the recovery made at his instance; and that
nothing has been stated in his examination under Section 313 CrPC that
there was any justifiable reason to implicate him in the crime in question.
Thus, we find that each of the incriminating circumstances has been
clearly established and the chain of circumstances are conclusive in nature
to exclude any kind of hypothesis, but the one proposed to be proved, and
lead to a definite conclusion that the crime was committed by the accused.
Therefore, we have no hesitation in affirming the judgment of conviction
rendered by the learned trial Judge and affirmed by the High Court.”

4. On the issue of death sentence awarded to the petitioner, this Court
first considered the principles governing the matter in issue as under:-

“39. Now we shall proceed to deal with the facet of sentence. In Bachan
Singh v. State of Punjab[3], the Court held thus:

“(a) The normal rule is that the offence of murder shall be punished with
the sentence of life imprisonment. The Court can depart from that rule and
impose the sentence of death only if there are special reasons for doing
so. Such reasons must be recorded in writing before imposing the death
sentence.

(b) While considering the question of sentence to be imposed for the
offence of murder under Section 302 of the Penal Code, the Court must have
regard to every relevant circumstance relating to the crime as well as the
criminal. If the Court finds, but not otherwise, that the offence is of an
exceptionally depraved and heinous character and constitutes, on account of
its design and the manner of its execution, a source of grave danger to the
society at large, the Court may impose the death sentence.”

40. In Bachan Singh case3, the Court referred to the decision in Furman v.
Georgia[4] and noted the suggestion given by the learned counsel about the
aggravating and the mitigating circumstances. While discussing about the
aggravating circumstances, the Court noted the aggravating circumstances
suggested by the counsel which read as follows: (Bachan Singh case3, SCC p.
749, para 202)
“Aggravating circumstances.—A court may, however, in the following cases
impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning and involves
extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the Union or
of a member of any police force or of any public servant and was committed—
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member
or public servant in the lawful discharge of his duty as such member or
public servant whether at the time of murder he was such member or public
servant, as the case may be, or had ceased to be such member or public
servant; or
(d) if the murder is of a person who had acted in the lawful discharge of
his duty under Section 43 of the Code of Criminal Procedure, 1973, or who
had rendered assistance to a Magistrate or a police officer demanding his
aid or requiring his assistance under Section 37 and Section 129 of the
said Code.”
After reproducing the same, the Court opined: (SCC p. 749, para 203)
“203. Stated broadly, there can be no objection to the acceptance of these
indicators but as we have indicated already, we would prefer not to fetter
judicial discretion by attempting to make an exhaustive enumeration one way
or the other.”

41. Thereafter, the Court referred to the suggestions pertaining to
mitigating circumstances: (Bachan Singh case3, – SCC p.750 para 206)
“Mitigating circumstances.—In the exercise of its discretion in the above
cases, the court shall take into account the following circumstances.—
(1) That the offence was committed under the influence of extreme mental or
emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be
sentenced to death.
(3) The probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy
Conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the accused believed
that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another
person.
(7) That the condition of the accused showed that he was mentally defective
and that the said defect impaired his capacity to appreciate the
criminality of his conduct.”
After reproducing the above, the Court observed: (SCC p. 750, para 207)
“207. We will do no more than to say that these are undoubtedly relevant
circumstances and must be given great weight in the determination of
sentence.

42. In the said case, the Court has also held thus: (Bachan Singh case3,
SCC p. 751, para 209)
“209. … It is, therefore, imperative to voice the concern that courts,
aided by the broad illustrative guidelines indicated by us, will discharge
the onerous function with evermore scrupulous care and humane concern,
directed along the highroad of legislative policy outlined in Section
354(3) viz. that for persons convicted of murder, life imprisonment is the
rule and death sentence an exception. A real and abiding concern for the
dignity of human life postulates resistance to taking a life through law’s
instrumentality. That ought not to be done save in the rarest of rare cases
when the alternative option is unquestionably foreclosed.”

43. In Machhi Singh and others v. State of Punjab[5] a three-Judge Bench
has explained the concept of rarest of the rare cases by stating that: (SCC
p. 487, para 32)
“32. The reasons why the community as a whole does not endorse the
humanistic approach reflected in ‘death sentence-in-no-case’ doctrine are
not far to seek. In the first place, the very humanistic edifice is
constructed on the foundation of ‘reverence for life’ principle. When a
member of the community violates this very principle by killing another
member, the society may not feel itself bound by the shackles of this
doctrine. Secondly, it has to be realised that every member of the
community is able to live with safety without his or her own life being
endangered because of the protective arm of the community and on account of
the rule of law enforced by it. The very existence of the rule of law and
the fear of being brought to book operates as a deterrent of those who have
no scruples in killing others if it suits their ends. Every member of the
community owes a debt to the community for this protection.”

44. Thereafter, after adverting to the aspects of the feeling of the
community and its desire for self-preservation, the Court opined that the
community may well withdraw the protection by sanctioning the death
penalty. The Court in that regard ruled thus: (Machhi Singh case5, SCC p.
487, para 32)
“32. … But the community will not do so in every case. It may do so ‘in the
rarest of rare cases’ when its collective conscience is so shocked that it
will expect the holders of the judicial power centre to inflict death
penalty irrespective of their personal opinion as regards desirability or
otherwise of retaining death penalty.”
It is apt to state here that in the said case, emphasis was laid on certain
aspects, namely, manner of commission of murder, motive for commission of
murder, anti-social or socially abhorrent nature of the crime, magnitude of
crime and personality of the victim of murder.

45. After so enumerating, the propositions that emerged out from Bachan
Singh3 were culled out which are as follows: (Machhi Singh case5, SCC p.
489, para 38)
“38. … The following propositions emerge from Bachan Singh case3:
‘(i) The extreme penalty of death need not be inflicted except in gravest
cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the
“offender” also require to be taken into consideration along with the
circumstances of the “crime”.
(iii) Life imprisonment is the rule and death sentence is an exception. In
other words death sentence must be imposed only when life imprisonment
appears to be an altogether inadequate punishment having regard to the
relevant circumstances of the crime, and provided, and only provided, the
option to impose sentence of imprisonment for life cannot be
conscientiously exercised having regard to the nature and circumstances of
the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be
drawn up and in doing so the mitigating circumstances have to be accorded
full weightage and a just balance has to be struck between the aggravating
and the mitigating circumstances before the option is exercised.”

46. Thereafter, the three-Judge Bench opined that to apply the said
guidelines, the following questions are required to be answered: (Machhi
Singh case5, SCC p. 489, para 39)
“(a) Is there something uncommon about the crime which renders sentence of
imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative
but to impose death sentence even after according maximum weightage to the
mitigating circumstances which speak in favour of the offender?”
In the said case, the Court upheld the extreme penalty of death in respect
of three accused persons.”

5. In the light of the principles as stated above, the facts of the
present matter were considered by this Court in the Judgment under review
as under:-
“57. Keeping in view the aforesaid authorities, we shall proceed to
adumbrate what is the duty of the Court when the collective conscience is
shocked because of the crime committed. When the crime is diabolical in
nature and invites abhorrence of the collective, it shocks the judicial
conscience and impels it to react keeping in view the collective
conscience, cry of the community for justice and the intense indignation at
the manner in which the brutal crime is committed. We are absolutely
conscious that Judges while imposing sentence, should never be swayed away
by any kind of individual philosophy and predilections. It should never
have the flavour of Judge-centric attitude or perception. It has to satisfy
the test laid down in various precedents relating to the rarest of the rare
case. We are also required to pose two questions that have been stated in
Machhi Singh case5.

58. Presently, we shall proceed to dwell upon the manner in which the crime
was committed. Materials on record clearly reveal that the appellant was
well acquainted with the inhabitants of the locality and as is demonstrable
he had access to the house of the father of the deceased and the children
used to call him “uncle”. He had lured the deceased to go with him to have
chocolates. It is an act of taking advantage of absolute innocence. He had
taken the deceased from place to place by his bicycle and eventually raped
her in a brutal manner, as if he had an insatiable and ravenous appetite.
The injuries caused on the minor girl are likely to send a chill in the
spine of the society and shiver in the marrows of human conscience. He had
battered her to death by assaulting her with two heavy stones. The injured
minor girl could not have shown any kind of resistance. It is not a case
where the accused had a momentary lapse. It is also not a case where the
minor child had died because of profuse bleeding due to rape but because of
the deliberate cruel assault by the appellant. After the savage act was
over, the coolness of the appellant is evident, for he washed the clothes
on the tap and took proper care to hide things. As is manifest, he even did
not think for a moment the trauma and torture that was caused to the
deceased. The gullibility and vulnerability of the four year girl, who
could not have nurtured any idea about the maladroitly designed biological
desires of this nature, went with the uncle who extinguished her life-
spark. The barbaric act of the appellant does not remotely show any concern
for the precious life of a young minor child who had really not seen life.
The criminality of the conduct of the appellant is not only depraved and
debased, but can have a menacing effect on the society. It is calamitous.

60. In the case at hand, as we find, not only was the rape committed in a
brutal manner but murder was also committed in a barbaric manner. The rape
of a minor girl child is nothing but a monstrous burial of her dignity in
the darkness. It is a crime against the holy body of a girl child and the
soul of society and such a crime is aggravated by the manner in which it
has been committed. The nature of the crime and the manner in which it has
been committed speaks about its uncommonness. The crime speaks of
depravity, degradation and uncommonality. It is diabolical and barbaric.
The crime was committed in an inhuman manner. Indubitably, these go a long
way to establish the aggravating circumstances.

61. We are absolutely conscious that mitigating circumstances are to be
taken into consideration. The learned counsel for the appellant pointing
out the mitigating circumstances would submit that the appellant is in his
mid-fifties and there is possibility of his reformation. Be it noted, the
appellant was aged about forty-seven years at the time of commission of the
crime. As is noticeable, there has been no remorse on the part of the
appellant. There are cases when this Court has commuted the death sentence
to life finding that the accused has expressed remorse or the crime was not
premeditated. But the obtaining factual matrix when unfolded stage by stage
would show the premeditation, the proclivity and the rapacious desire. The
learned counsel would submit that the appellant had no criminal antecedents
but we find that he was a history-sheeter and had a number of cases pending
against him. That alone may not be sufficient. The appalling cruelty shown
by him to the minor girl child is extremely shocking and it gets
accentuated, when his age is taken into consideration. It was not committed
under any mental stress or emotional disturbance and it is difficult to
comprehend that he would not commit such acts and would be reformed or
rehabilitated. As the circumstances would graphically depict, he would
remain a menace to society, for a defenceless child has become his prey. In
our considered opinion, there are no mitigating circumstances.”
6. The above quoted observations of this Court in Judgment under review
show that the aggravating facts were considered in paragraphs 58 and 60 and
the entirety of the matter including the mitigating circumstances were
dealt with more particularly in paragraph 61. The aggravating facts not
only showed the extreme depravity but in the opinion of this Court they
brought to the fore the diabolical and barbaric manner in which the crime
was committed. The Court did not find any mitigating circumstances in
favour of the accused to tilt the balance in his favour for awarding lesser
punishment.

7. At this juncture, it may be noted that the decision of this Court in
Machhi Singh (supra) shows that after having laid down oft-quoted
principles, this Court considered individual cases of accused Machhi Singh,
Jagir Singh and Kashmir Singh. As regards Machhi Singh, it was observed in
paragraph 42:-
“…….The offence committed was of an exceptionally depraved and heinous
character. The manner of its execution and its design would put it at the
level of extreme atrocity and cruelty.

…….. The crime committed carries features which could be utterly
horrendous especially when we know the weapons and the manner of their use.
The victims could offer no resistance to the accused appellants. The law
clamours for a sterner sentence; the crime being heinous, atrocious and
cruel.

……..The crime was gruesome and cold-blooded revealing the propensity of the
accused appellants to commit murder.”

Similarly as regards Jagir Singh it was observed,

“…….The crime committed carries features which could be utterly horrendous
especially when we know the weapons and their manner of use. The victims
could offer no resistance to the accused appellants. The law clamours for a
sterner sentence; the crime being heinous, atrocious and cruel.

………The helpless state of the victims and the circumstances of the case lead
us to confirm the death sentence.”
8. Further, paragraphs 44 and 45 show that one of the accused namely
Kashmir Singh had caused the death of a defenceless child of six years and
the matter as regards said accused Kashmir Singh in particular and with
regard to all the accused in general, was dealt with as under:-
“44. Insofar as appellant Kashmir Singh s/o Arjan Singh is concerned death
sentence has been imposed on him by the Sessions Court and confirmed by the
High Court for the following reasons:
Similarly, Kashmir Singh appellant caused the death of a child Balbir Singh
aged six years while asleep, a poor defenceless life put off by a depraved
mind reflecting grave propensity to commit murder.

45. We are of the opinion that insofar as these three appellants are
concerned the rarest of rare cases rule prescribed in Bachan Singh case is
clearly attracted and sentence of death is called for. We are unable to
persuade ourselves that a sentence of imprisonment for life will be
adequate in the circumstances of the crime. We therefore fully uphold the
view concurrently taken by the Sessions Court and the High Court that
extreme penalty of death requires to be imposed on appellants (1) Machhi
Singh (2) Kashmir Singh s/o Arjan Singh (3) Jagir Singh. We accordingly
confirm the death sentence imposed on them and dismiss their appeals.”
9. The assessment and the consideration bestowed by this Court in Machhi
Singh (supra) shows that the aggravating circumstances namely the manner in
which the crime was committed, the brutality and barbaric manner of
execution, the status and helplessness of victims and the fact that the
crime was gruesome and cold blooded were given due weightage. These facts
themselves were found to be tilting the balance against the concerned
accused. In the present case a minor girl of four years was raped and
battered to death by the petitioner. The brutality and diabolical nature
of the crime and the fact that the victim had reposed trust and confidence
in the petitioner was taken into account and this Court found the
aggravating circumstances completely outweighing the other factors. The
evidence and circumstances were dealt with in the Judgment under review in
great detail and this Court had no hesitation in affirming the death
sentence.

10. In the present Review Petition, Mr. Anup Bhambhani, learned Senior
Advocate appearing for the petitioner, at the outset, raised a grievance
that in the light of principles laid down in Bachan Singh and Machhi Singh
(supra) mitigating factors ought to have been taken into account and that
proper and effective hearing in that behalf was not extended to the
petitioner. This Court therefore by Order dated 31.08.2016 permitted the
petitioner to file material to indicate mitigating factors for conversion
of the death sentence to life imprisonment. This was in keeping with the
principles laid down by this Court in Dagdu and Others v. State of
Maharashtra[6] wherein three Judge Bench of this Court had observed:-

“79 …..The Court, on convicting an accused, must unquestionably hear him on
the question of sentence. But if, for any reason, it omits to do so and the
accused makes a grievance of it in the higher court, it would be open to
that Court to remedy the breach by giving a hearing to the accused on the
question of sentence.”

80. …….For a proper and effective implementation of the provision contained
in Section 235(2), it is not always necessary to remand the matter to the
court which has recorded the conviction……Remand is an exception, not the
rule, and ought therefore to be avoided as far as possible in the interests
of expeditious, though fair, disposal of cases.”
11. The petitioner thereafter filed Crl.M.P. Nos.16369-70 of 2016 placing
on record certain facts and material. It was submitted :-
“Education and Activities undertaken by the Petitioner in Jail

The Petitioner submits that he had to discontinue school after class 6th
during childhood. Thereafter he worked in various jobs such as
electrician, construction labourer, nursery worker, security guard. Death
row prisoners in Maharashtra are not permitted to work, but the Petitioner
as an undertial has worked in the jail nursery. During incarceration, the
Petitioner has undertaken studies, art competitions as well as several
programmes aimed at reforming himself. The Petitioner’s counsel is
informed that his drawings are exhibited in jail as well.

The Petitioner has in 2015 successfully completed the Bachelors Preparatory
Programme offered by the Indira Gandhi National Open University. This
course enables people who have discontinued schooling before matriculation
to prepare for bachelors-level studies.

The Petitioner in 2015 also successfully completed the Gandhi Vichar
Pariksha (Examinaiton on Gandhian Thoughts). This examination seeks to
rehabilitate prisoners who have committed violent crimes, by learning from
the life and teaching of M.K. Gandhi. The course includes classes on the
teachings of M.K. Gandhi, reading his autobiography, and a descriptive
exam.

The Petitioner is quite proficient in drawing and has also participated in
a drawing competition organized by the Nagpur Municipal Corporation and
Kalajarn Foundation on 10.01.2016.

It is therefore submitted that the Petitioner is on the path to reformation
and rehabilitation and therefore the death sentence imposed on him deserves
to be commuted to imprisonment for life.”

The application then set out that the Disciplinary Record of the
Petitioner in Jail was without any blemish and that there were no criminal
antecedents.

12. The matter was thereafter posted for hearing. Mr. Anup Bhambhani,
learned Senior Advocate principally submitted:-
a. The judgment of conviction and order of sentence were passed by the
trial court on the same day namely on 23.02.2012 which was completely
opposed to the law laid down by this Court in Allauddin Mian and Others v.
State of Bihar[7] and against the spirit of Section 235(2) of the CrPC.

b. As laid down in para 206 of Bachan Singh (supra) “the probability
that the accused can be reformed” was an important facet and the burden was
on the State to prove by evidence that the accused could not possibly be
reformed. However, such burden was not discharged by the State and no
evidence was led. In the absence of such evidence by the State, no death
sentence could be awarded or confirmed.
13. Para 10 of the decision of this Court in Allauddin Mian v. State of
Bihar (supra) on which reliance was placed, is to the following effect:-
10. Even a casual glance at the provisions of the Penal Code will show that
the punishments have been carefully graded corresponding with the gravity
of offences; in grave wrongs the punishments prescribed are strict whereas
for minor offences leniency is shown. Here again there is considerable room
for manoeuvre because the choice of the punishment is left to the
discretion of the judge with only the outer limits stated. There are only a
few cases where a minimum punishment is prescribed. The question then is
what procedure does the judge follow for determining the punishment to be
imposed in each case to fit the crime? The choice has to be made after
following the procedure set out in sub-section (2) of Section 235 of the
Code. That sub-section reads as under:

If the accused is convicted, the judge shall, unless he proceeds in
accordance with the provisions of Section 360, hear the accused on the
question of sentence, and then pass sentence on him according to law.

The requirement of hearing the accused is intended to satisfy the rule of
natural justice. It is a fundamental requirement of fair play that the
accused who was hitherto concentrating on the prosecution evidence on the
question of guilt should, on being found guilty, be asked if he has
anything to say or any evidence to tender on the question of sentence. This
is all the more necessary since the courts are generally required to make
the choice from a wide range of discretion in the matter of sentencing. To
assist the court in determining the correct sentence to be imposed the
legislature introduced sub-section (2) to Section 235. The said provision
therefore satisfies a dual purpose; it satisfies the rule of natural
justice by according to the accused an opportunity of being heard on the
question of sentence and at the same time helps the court to choose the
sentence to be awarded. Since the provision is intended to give the accused
an opportunity to place before the court all the relevant material having a
bearing on the question of sentence there can be no doubt that the
provision is salutary and must be strictly followed. It is clearly
mandatory and should not be treated as a mere formality. Mr Garg was,
therefore, justified in making a grievance that the trial court actually
treated it as a mere formality as is evident from the fact that it recorded
the finding of guilt on 31-3-1987, on the same day before the accused could
absorb and overcome the shock of conviction they were asked if they had
anything to say on the question of sentence and immediately thereafter the
decision imposing the death penalty on the two accused was pronounced. In a
case of life or death as stated earlier, the presiding officer must show a
high decree of concern for the statutory right of the accused and should
not treat it as a mere formality to be crossed before making the choice of
sentence. If the choice is made, as in this case, without giving the
accused an effective and real opportunity to place his antecedents, social
and economic background, mitigating and extenuating circumstances, etc.,
before the court, the court’s decision on the sentence would be vulnerable.
We need hardly mention that in many cases a sentencing decision has far
more serious consequences on the offender and his family members than in
the case of a purely administrative decision; a fortiori, therefore, the
principle of fair play must apply with greater vigour in the case of the
former than the latter. An administrative decision having civil
consequences, if taken without giving a hearing is generally struck down as
violative of the rule of natural justice. Likewise a sentencing decision
taken without following the requirements of sub-section (2) of Section 235
of the Code in letter and spirit would also meet a similar fate and may
have to be replaced by an appropriate order. The sentencing court must
approach the question seriously and must endeavour to see that all the
relevant facts and circumstances bearing on the question of sentence are
brought on record. Only after giving due weight to the mitigating as well
as the aggravating circumstances placed before it, it must pronounce the
sentence. We think as a general rule the trial courts should after
recording the conviction adjourn the matter to a future date and call upon
both the prosecution as well as the defence to place the relevant material
bearing on the question of sentence before it and thereafter pronounce the
sentence to be imposed on the offender. In the present case, as pointed out
earlier, we are afraid that the learned trial Judge did not attach
sufficient importance to the mandatory requirement of sub-section (2) of
Section 235 of the Code.”
14. Sub-section (2) of Section 235 of Cr.P.C. obliges the Court to hear
the accused on the question of sentence and normally it is expected that
after recording the conviction, the matter be adjourned to a future date
calling upon both the prosecution as well as the defence to place relevant
material having bearing on the question of sentence. The effect of
recording of the conviction and imposition of death sentence on the same
day, was also considered by a bench of three learned Judges of this Court
in Malkiat Singh and others v. State of Punjab[8]. In that case, this
Court did not deem it expedient to remand the matter after six years and
converted the sentence of death to imprisonment for life. It was observed:-

“18. On finding that the accused committed the charged offences, Section
235(2) of the Code empowers the Judge that he shall pass sentence on him
according to law on hearing him. Hearing contemplated is not confined
merely to oral hearing but also intended to afford an opportunity to the
prosecution as well as the accused to place before the court facts and
material relating to various factors on the question of sentence, and if
interested by either side, to have evidence adduced to show mitigating
circumstances to impose a lesser sentence or aggravating grounds to impose
death penalty. Therefore, sufficient time must be given to the accused or
the prosecution on the question of sentence, to show the grounds on which
the prosecution may plead or the accused may show that the maximum sentence
of death may be the appropriate sentence or the minimum sentence of life
imprisonment may be awarded, as the case may be. No doubt the accused
declined to adduce oral evidence. But it does not prevent to show the
grounds to impose lesser sentence on A-1. This Court in the aforestated
Allauddin and Anguswamy[9] cases held that the sentence awarded on the same
day of finding guilt is not in accordance with the law. That would normally
have the effect of remanding the case to the Special Court for
reconsideration. But in the view of the fact that A-1 was in incarceration
for long term of six years from the date of conviction, in our considered
view it needs no remand for further evidence. It is sufficient that the
sentence of death awarded to A-1 is converted into rigorous imprisonment
for life. The sentences of death is accordingly modified and A-1 is
sentenced to undergo rigorous imprisonment for life for causing the deaths
of all four deceased.”
15. In a recent Judgment rendered by three learned Judges of this Court
in B.A. Umesh v. High Court of Karnataka[10], the facts were more or less
similar, in that no separate date for hearing on sentence was given after
recording conviction. Para 8 of that decision of this Court is quoted for
ready reference:-
“8. In addition to above, it is contended on behalf of the petitioner
(Review Applicant) that since no separate date for hearing on sentence was
given in the present case by the trial court, as such for violation of
Section 235(2) Cr.P.C., the sentence of death cannot be affirmed. We have
considered the argument of Ms. Suri. It is true that the convict has a
right to be heard before sentence. There is no mandate in Section 235(2)
Cr.P.C. to fix separate date for hearing on sentence. It depends on the
facts and circumstances as to whether a separate date is required for
hearing on sentence or parties feel convenient to argue on sentence on the
same day. Had any party pressed for separate date for hearing on the
sentence, or both of them wanted to be heard on some other date, situation
could have been different. In the present case, the parties were heard on
sentence by both the courts below, and finally by this Court, as is
apparent from the Judgment under review. As such, merely for the reason
that no separate date is given for hearing on the sentence, the Review
Petition cannot be allowed.”

This Court then relied on the principle laid down in Dagdu v. State of
Maharashtra (supra) which was followed subsequently by another Bench of
three learned Judges in Tarlok Singh v. State of Punjab[11]. In the
circumstances, merely because no separate date was given for hearing on
sentence, we cannot find the entire exercise to be flawed or vitiated.
Since we had allowed the petitioner to place the relevant material on
record in the light of the principles laid down in Dagdu v. State of
Maharashtra (supra), we will proceed to consider the material so placed on
record and weigh these factors and the aggravating circumstances as found
by the Court in the Judgment under review.

16. However, before such consideration we must deal with the second
submission advanced by Mr. Bhambhani, learned Senior Advocate. In his
submission, in terms of paragraph 206 of the decision of this Court in
Bachan Singh (supra) the burden was upon the State in respect of conditions
(3) and (4), which burden was not discharged at all. Consequently,
according to him, the sentence of death would be required to be converted
to life imprisonment. Paragraph 206 of the decision of this Court in
Bachan Singh (supra) detailed certain mitigating circumstances and while
dealing with conditions (3) and (4), this Court observed that it would be
for the State to prove by evidence that the accused did not satisfy
conditions (3) and (4). However, subsequent paragraphs show that those
circumstances would certainly be relevant and great weight be attached to
them but it was the cumulative effect of the mitigating circumstances on
one hand and the aggravating facts on the other, which would be weighed to
come to the final conclusion whether the case satisfied the requirement of
being “rarest of rare”. It is not as if mere failure on part of the State
to lead such evidence would clinch the issue in favour of the accused.

17. Mr. Bhambhani, learned Senior Advocate then relied on the decision of
this Court in Rajesh Kumar v. State through Government of NCT of Delhi[12],
particularly paragraphs 73 and 74 thereof which paragraphs are as under:
“73. In the instant case the State has failed to show that the appellant is
a continuing threat to the society or that he is beyond reform and
rehabilitation. On the other hand, in para 77 of the impugned judgment the
High Court observed as follows:
“We have no evidence that the appellant is incapable of being rehabilitated
in society. We also have no evidence that he is capable of being
rehabilitated in society. This circumstance remains a neutral
circumstance.”

74. It is clear from the aforesaid finding of the High Court that there is
no evidence to show that the accused is incapable of being reformed or
rehabilitated in the society and the High Court has considered the same as
a neutral circumstance. In our view the High Court was clearly in error.
The very fact that the accused can be rehabilitated in the society and is
capable of being reformed, since the State has not given any evidence to
the contrary, is certainly a mitigating circumstance and which the High
Court has failed to take into consideration. The High Court has also failed
to take into consideration that the appellant is not a continuing threat to
the society in the absence of any evidence to the contrary. Therefore, in
para 78 of the impugned judgment, the High Court, with respect, has taken a
very narrow and a myopic view of the mitigating circumstances about the
appellant. The High Court has only considered that the appellant is a first
time offender and he has a family to look after. We are, therefore,
constrained to observe that the High Court’s view of mitigating
circumstances has been very truncated and narrow insofar as the appellant
is concerned.”

The discussion shows that this Court found that mitigating circumstances in
favour of the appellant were not properly considered and in the ultimate
analysis the case did not satisfy being “rarest of rare” and therefore,
this Court substituted the sentence of imprisonment for life to that of
death sentence. The discussion in paragraphs 73 and 74 does not indicate
that in the absence of any evidence led by the State in connection with
conditions (3) and (4) as stated in paragraph 206 of Bachan Singh (supra),
the entire exercise gets vitiated and the matter must always be answered in
favour of the accused. It is undoubtedly a relevant consideration which
will be weighed by the Court together with other circumstances on record.
We, therefore, do not find any merit in the second submission.

18. In Ramnaresh and Others v. State of Chhattisgarh[13] this Court
considered the import of governing principles regarding death sentence and
summed up that it is the cumulative effect of both the aggravating and
mitigating circumstances that need to be taken into account. Paragraphs 76
to 81 of the decision are as under:-
“76. The law enunciated by this Court in its recent Judgments, as already
noticed, adds and elaborates the principles that were stated in Bachan
Singh and thereafter, in Machhi Singh. The

aforesaid Judgments, primarily dissect these principles into two different
compartments—one being the “aggravating circumstances” while the other
being the “mitigating circumstances”. The court would consider the
cumulative effect of both these aspects and normally, it may not be very
appropriate for the court to decide the most significant aspect of
sentencing policy with reference to one of the classes under any of the
following heads while completely ignoring other classes under other heads.
To balance the two is the primary duty of the court. It will be appropriate
for the court to come to a final conclusion upon balancing the exercise
that would help to administer the criminal justice system better and
provide an effective and meaningful reasoning by the court as contemplated
under Section 354(3) Cr.P.C.

Aggravating circumstances

(1) The offences relating to the commission of heinous crimes like murder,
rape, armed dacoity, kidnapping, etc. by the accused with a prior record of
conviction for capital felony or offences committed by the person having a
substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the
commission of another serious offence.
(3) The offence was committed with the intention to create a fear psychosis
in the public at large and was committed in a public place by a weapon or
device which clearly could be hazardous to the life of more than one
person.
(4) The offence of murder was committed for ransom or like offences to
receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving
inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully
carrying out his duty like arrest or custody in a place of lawful
confinement of himself or another. For instance, murder is of a person who
had acted in lawful discharge of his duty under Section 43 CrPC.
(9) When the crime is enormous in proportion like making an attempt of
murder of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or a person relies upon the
trust of relationship and social norms, like a child, helpless woman, a
daughter or a niece staying with a father/uncle and is inflicted with the
crime by such a trusted person.
(11) When murder is committed for a motive which evidences total depravity
and meanness.
(12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks not only
the judicial conscience but even the conscience of the society.

Mitigating circumstances

(1) The manner and circumstances in and under which the offence was
committed, for example, extreme mental or emotional disturbance or extreme
provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a
determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the crime
again and the probability of the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally defective and
the defect impaired his capacity to appreciate the circumstances of his
criminal conduct.
(5) The circumstances which, in normal course of life, would render such a
behaviour possible and could have the effect of giving rise to mental
imbalance in that given situation like persistent harassment or, in fact,
leading to such a peak of human behaviour that, in the facts and
circumstances of the case, the accused believed that he was morally
justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view
that the crime was not committed in a preordained manner and that the death
resulted in the course of commission of another crime and that there was a
possibility of it being construed as consequences to the commission of the
primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole
eyewitness though the prosecution has brought home the guilt of the
accused.
77. While determining the questions relatable to sentencing policy, the
court has to follow certain principles and those principles are the
loadstar besides the above considerations in imposition or otherwise of the
death sentence.

Principles

(1) The court has to apply the test to determine, if it was the “rarest of
rare” case for imposition of a death sentence.
(2) In the opinion of the court, imposition of any other punishment i.e.
life imprisonment would be completely inadequate and would not meet the
ends of justice.
(3) Life imprisonment is the rule and death sentence is an exception.
(4) The option to impose sentence of imprisonment for life cannot be
cautiously exercised having regard to the nature and circumstances of the
crime and all relevant considerations.
(5) The method (planned or otherwise) and the manner (extent of brutality
and inhumanity, etc.) in which the crime was committed and the
circumstances leading to commission of such heinous crime.

78. Stated broadly, these are the accepted indicators for the exercise of
judicial discretion but it is always preferred not to fetter the judicial
discretion by attempting to make the excessive enumeration, in one way or
another. In other words, these are the considerations which may
collectively or otherwise weigh in the mind of the court, while exercising
its jurisdiction. It is difficult to state it as an absolute rule. Every
case has to be decided on its own merits. The judicial pronouncements, can
only state the precepts that may govern the exercise of judicial discretion
to a limited extent. Justice may be done on the facts of each case. These
are the factors which the court may consider in its endeavour to do
complete justice between the parties.

79. The court then would draw a balance sheet of aggravating and mitigating
circumstances. Both aspects have to be given their respective weightage.
The court has to strike a balance between the two and see towards which
side the scale/balance of justice tilts. The principle of proportion
between the crime and the punishment is the principle of “just deserts”
that serves as the foundation of every criminal sentence that is
justifiable. In other words, the “doctrine of proportionality” has a
valuable application to the sentencing policy under the Indian criminal
jurisprudence. Thus, the court will not only have to examine what is just
but also as to what the accused deserves keeping in view the impact on the
society at large.

80. Every punishment imposed is bound to have its effect not only on the
accused alone, but also on the society as a whole. Thus, the courts should
consider retributive and deterrent aspect of punishment while imposing the
extreme punishment of death.

81. Wherever, the offence which is committed, manner in which it is
committed, its attendant circumstances and the motive and status of the
victim, undoubtedly bring the case within the ambit of “rarest of rare”
cases and the court finds that the imposition of life imprisonment would be
inflicting of inadequate punishment, the court may award death penalty.
Wherever, the case falls in any of the exceptions to the “rarest of rare”
cases, the court may exercise its judicial discretion while imposing life
imprisonment in place of death sentence.”
19. It is thus well settled, “the Court would consider the cumulative
effect of both the aspects (namely aggravating factors as well as
mitigating circumstances) and it may not be very appropriate for the Court
to decide the most significant aspect of sentencing policy with reference
to one of the classes completely ignoring other classes under other heads
and it is the primary duty of the Court to balance the two.” Further, “it
is always preferred not to fetter the judicial discretion by attempting to
make excessive enumeration, in one way or another; and that both aspects
namely aggravating and mitigating circumstances have to be given their
respective weightage and that the Court has to strike the balance between
the two and see towards which side the scale/balance of justice tilts.”
With these principles in mind we now consider the present review petition.
20. The material placed on record shows that after the Judgment under
review, the petitioner has completed Bachelors Preparatory Programme
offered by the Indira Gandhi National Open University enabling him to
prepare for Bachelor level study and that he has also completed the Gandhi
Vichar Pariksha and had participated in drawing competition organized
sometime in January 2016. It is asserted that the jail record of the
petitioner is without any blemish. The matter is not contested as regards
Conditions 1, 2, 5, 6 and 7 as stated in paragraph 206 of the decision in
Bachan Singh (supra) but what is now being projected is that there is a
possibility of the accused being reformed and rehabilitated. Though these
attempts on part of the petitioner are after the Judgment under review, we
have considered the material in that behalf to see if those circumstances
warrant a different view. We have given anxious consideration to the
material on record but find that the aggravating circumstances namely the
extreme depravity and the barbaric manner in which the crime was committed
and the fact that the victim was a helpless girl of four years clearly
outweigh the mitigating circumstances now brought on record. Having taken
an overall view of the matter, in our considered view, no case is made out
to take a different view in the matter. We, therefore, affirm the view
taken in the Judgment under review and dismiss the present Review
Petitions.
..………………………J.
(Dipak Misra)

…………..…..…………J.
(Rohinton Fali Nariman)

…………..……..……..J.
(Uday Umesh Lalit)

New Delhi,
May 03, 2017
———————–
[1]

[2] (2014) 9 SCC 737
[3]

[4] (2015) 1 SCC 253
[5]

[6] (1980) 2 SCC 684
[7]

[8] 33 L.Ed. 2d 346 = 408 US 238 (1972)
[9]

[10](1983) 3 SCC 470
[11]

[12] (1977) 3 SCC 68
[13]

[14](1989) 3 SCC 5
[15]

[16] (1991) 4 SCC 341
[17]

[18] (1989) 3 SCC 33
[19]

[20] (2016) 9 SCALE 600
[21]

[22] (1977) 3 SCC 218
[23]

[24] (2011) 13 SCC 706
[25]

[26] (2012) 4 SCC 257

Posted in Uncategorized

whether the offences for which the employee is convicted constitute moral turpitude. If the answer is in the affirmative, it would be open to the competent authority to pass the order of termination without holding inquiry. However, if the offences for which an employee is convicted have no shades of moral turpitude, the disciplinary authority has to look into the attendant circumstances leading to the conduct of such an employee to see whether he is suitable for rejection in government service or not.”- convicted under sec.323 I.P.C. – In the present case by the time the benefit of acquittal of the co- accused was pressed in service and claim was raised by the respondent, Dharam Singh had already expired. In the circumstances, we direct that the respondent shall be entitled to all the benefits in terms of the judgment under appeal except the payment of back wages. All the other consequential benefits be computed and released to the respondent within two months from the date of this Judgment. With the aforesaid modification, the appeal stands disposed of.

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  6066   of 2017

(Arising out of SLP (Civil) No.21622 of 2015)

State of  Haryana and Another                                 …. Appellants

Versus

Ved Kaur                                           …. Respondent

J U D G M E N T

Uday Umesh Lalit, J.

1.    Leave granted.

2.    The  appellants  seek  to  challenge  the  judgment  and  order  dated

25.08.2014 of the High Court of Punjab and Haryana at Chandigarh  passed  in

LPA No.1353 of 2014 (OM), affirming the view taken by the  Single  Judge  of

the High Court on 22.01.2014 in CWP No.14998 of 2007.

3.    One Dharam Singh (since deceased and represented  by  his  widow,  the

respondent herein) was working as JBT teacher  in  Education  Department  in

State of Haryana since 07.10.1967.  He and two others were  convicted  under

Section 304 Part-II IPC vide judgment and order passed by  the  trial  court

on 29.10.1994 and were sentenced to undergo rigorous imprisonment  for  four

years.  On the basis of said  conviction  and  sentence,  Dharam  Singh  was

dismissed from service,  without  holding  any  enquiry,  vide  order  dated

28.03.1995 on the ground that he was convicted and sentenced for an  offence

involving moral turpitude.

4.    While the appeal preferred against  the  judgment  of  conviction  and

sentence was pending, Dharam Singh expired  on  11.12.2002  and  his  appeal

abated.  Subsequently the appeal of the co-accused was  partly  allowed  and

they were acquitted of the offence under Section 304 Part II  IPC  but  were

convicted under Section 323 read with Section 34 IPC.  The role of  the  co-

accused was admittedly similar to that of Dharam Singh.

5.    After the acquittal of the co-accused, the respondent called upon  the

State to set aside the order of dismissal of her husband  in  the  light  of

the finding recorded by the appellate court and to release all  the  service

benefits to which her deceased husband  was  entitled.   This  claim  having

been rejected,  the  respondent  filed  CWP  No.10134  of  2005   which  was

disposed of by the High Court directing the State to  reconsider  the  claim

of the respondent.  The matter was, therefore,  reconsidered  by  the  State

but the claim was again rejected.

6.    The rejection of claim was challenged  afresh  by  the  respondent  by

filing CWP No.14998 of 2007 which was allowed by the  Single  Judge  of  the

High Court, relying on the instructions dated 26.03.1975 issued by State  of

Haryana wherein offences involving “moral  turpitude”  stand  enlisted.   It

was observed that the offence under Section 323 IPC did not fall under  said

category of offences.  It was further observed that the role  attributed  to

the deceased husband of the respondent  was  similar  to  that  of  his  co-

accused and that the appellate court had held that the  death  in  the  case

was not because of the  injuries  attributed  to  the  accused  but  it  was

because of renal failure.

7.    The decision of the Single  Judge  was  questioned  by  the  State  by

filing Letters Patent Appeal No.1353 of  2014  (OM).    Affirming  the  view

taken by the Single Judge, the Division Bench dismissed  the  aforesaid  LPA

and held the respondent to be entitled to all consequential benefits.

8.    The instructions dated  26.03.1975  which  were  relied  upon  in  the

present case, had been considered by this Court in Pawan Kumar v.  State  of

Haryana and another[1] and paragraph 12 of  the  decision  is  relevant  for

present purposes.  The said paragraph was as under:

“12.   Moral turpitude” is an expression which is  used  in  legal  as  also

societal parlance to  describe  conduct  which  is  inherently  base,  vile,

depraved or having any  connection  showing  depravity.  The  Government  of

Haryana while considering the  question  of  rehabilitation  of  ex-convicts

took  a  policy  decision  on  2-2-1973  (Annexure  E  in  the  Paper-book),

accepting the recommendations of the Government of India,  that  ex-convicts

who were  convicted  for  offences  involving  moral  turpitude  should  not

however be taken in government  service.  A  list  of  offences  which  were

considered involving  moral  turpitude  was  prepared  for  information  and

guidance in that connection. Significantly Section  294  IPC  is  not  found

enlisted in the list of offences constituting  moral  turpitude.  Later,  on

further consideration, the Government of Haryana on  17/26-3-1975  explained

the policy decision of 2-2-1973 and decided to modify the  earlier  decision

by streamlining determination of moral turpitude as follows:

“… The following terms should ordinarily be applied  in  judging  whether  a

certain offence involves moral turpitude or not;

whether the act leading to a conviction was such as could  shock  the  moral

conscience of society in general.

whether the motive which led to the act was a base one.

whether on account of the act having been committed  the  perpetrator  could

be considered to be of a depraved character  or  a  person  who  was  to  be

looked down upon by the society.

Decision in each case will, however, depend  on  the  circumstances  of  the

case and the competent  authority  has  to  exercise  its  discretion  while

taking a decision in accordance with the above-mentioned principles. A  list

of offences which involve moral turpitude is enclosed for  your  information

and guidance. This list, however, cannot be said to be exhaustive and  there

might be offences which  are  not  included  in  it  but  which  in  certain

situations and circumstances may involve moral turpitude.”

Section 294 IPC still remains out of the list. Thus the  conviction  of  the

appellant under  Section  294  IPC  on  its  own  would  not  involve  moral

turpitude depriving him of the opportunity to serve  the  State  unless  the

facts and circumstances, which led to the conviction, met  the  requirements

of the policy decision above-quoted.”

9.    The aforesaid decision shows that Section 294 IPC was not part of  the

list of offences appended to the instructions dated 26.03.1975 and  as  such

it was held by this Court that  the  conviction  of  the  appellant  therein

under Section 294 IPC would not involve moral  turpitude  depriving  him  of

the opportunity to serve the State unless the facts and circumstances  which

led to his conviction, met the requirement of the policy decision.

10.   In the aforesaid context, decision of the Division Bench of  the  High

Court of Punjab  and  Haryana  in  State  of  Haryana  and  another  v.  Ram

Chander[2]  on  which  reliance  was  placed  by  the  respondent,  is  also

significant wherein same instructions dated 26.03.1975  were  considered  by

the Division Bench and paragraphs 11 and 12 of the  said  decision  were  as

under:

“11.  Following principles can be culled out, as contained in the  aforesaid

instructions:-

(a) Those who are involved  in  moral  turpitude  should  not  be  taken  in

government service.

(b) Those who  are  convicted  of  offences,  which  do  not  involve  moral

turpitude or those who are released under the Probation  of  Offenders  Act,

should  not  suffer  any  disability  in  respect  of  obtaining  government

service.

(c)  With  regard  to  those  convicted  of  offence  not  involving   moral

turpitude, laying down uniform policy, is not possible and  it  is  left  to

the appointing authority in each case to make detailed inquiry  and  satisfy

himself fully that ex-convict has reformed himself after release  from  jail

and nothing  adverse  about  his  conduct  has  come  to  notice  after  his

conviction. Such  an  inquiry  is  to  be  made  invariably  through  Police

Department.

(d) What amounts to moral turpitude is also stated  in  para  (iii)  of  the

instructions.

(e) Discretion is given to the competent authority while taking decision  in

accordance with principle mentioned in these instructions.

12.   On the basis of these instructions, when  competent  authority  is  to

invoke its power under Rule 7(2)(b)  of  the  P&A  Rules,  1978,  the  first

question would be as to whether the  offences  for  which  the  employee  is

convicted constitute moral turpitude. If the answer is in  the  affirmative,

it  would  be  open  to  the  competent  authority  to  pass  the  order  of

termination without holding inquiry. However, if the offences for  which  an

employee is convicted have no shades of moral  turpitude,  the  disciplinary

authority has to look  into  the  attendant  circumstances  leading  to  the

conduct of such an employee to see whether he is suitable for  rejection  in

government service or not.”

11.   In the aforesaid decision of the Division Bench, the conviction  under

Section 323 was not held to constitute  one  involving  moral  turpitude  in

terms of the test laid down  in  instructions  dated  26.03.1975.    In  the

premises, the decision of the Division Bench affirming that  of  the  Single

Judge in the present case does not call for any interference.   However,  it

must be noted at this stage  and  it  was  fairly  accepted  by  Mr.  Tushar

Bakshi, learned Advocate appearing for the respondent that in  view  of  the

decision of this Court in State Bank of India and another v. Mohammed  Abdul

Rahim[3] the order regarding payment of backwages as directed by the  courts

below needed modification.  Paragraph 12 of said decision was as under:

“The respondent was acquitted on 22-2-2002,  the  demand  for  reinstatement

was made by him on 22-4-2002  and  he  was  reinstated  in  service  by  the

appellant bank on 7-11-2002.  On  the  view  that  we  have  taken,  at  the

highest, what can be said  in  favour  of  the  respondent  is  that  he  is

entitled to wages from the date he  had  lodged  the  demand  for  the  same

following his acquittal, namely, from  22-4-2002,  until  the  date  of  his

reinstatement, if the same has not already been  granted  by  the  appellant

Bank.”

12.  In the present case by the time the benefit of acquittal  of  the  co-

accused was pressed in service and  claim  was  raised  by  the  respondent,

Dharam Singh had already expired.  In the circumstances, we direct that  the

respondent shall be entitled to all the benefits in terms  of  the  judgment

under appeal except the payment of back wages.  All the other  consequential

benefits be computed and released to the respondent within two  months  from

the date of this Judgment.  With  the  aforesaid  modification,  the  appeal

stands disposed of.

………………………J.

(Adarsh Kumar Goel)

…………………..……J.

(Uday Umesh Lalit)

New Delhi,

May 03,  2017

———————–

[1]   (1996) 4 SCC 17

[2]    LPA No.95 of 2013 (O&M) decided on 18.02.2013

[3]   (2013) 11 SCC 67

Posted in Uncategorized

exemption from payment of electricity duty = The appellant no.1 had filed an application dated 15.03.2001 seeking exemption from payment of electricity duty under the notification dated 27.02.1992 issued under Section 3(3) of the Bombay Electricity Act, 1958 (hereinafter referred to as Act 1958). Another application dated 12.04.2001 was sent by appellant no.1 to the Commissioner of Electricity seeking exemption from electricity duty for a period of 15 years under Section 3(2)(vii)(a)(i) of 1958 Act.= Another reason given by the High Court was that no application was made within 180 days of application of the notification dated 27.02.1992 or even from the date of installation of generating sets i.e. August 1995. Even if the second reason given by the High Court is ignored, non- fulfillment of condition no.(a) of notification dated 27.02.1992 clearly entailed rejection of claim under notification dated 27.02.1992. There is no foundation or basis laid down even in this appeal to assail the finding recorded by the High Court that generating set was not purchased from 01.01.1991 to 31.12.1992.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4842 OF 2017
(ARISING OUT OF SLP(CIVIL) NO.34384 OF 2016)

ESSAR STEEL INDIA LTD.
AND ANR. … APPELLANT(S)
VERSUS

STATE OF GUJARAT AND ANR. … RESPONDENT(S)
J U D G M E N T

ASHOK BHUSHAN,J.
1. This appeal has been filed against the Division Bench judgment of
Gujarat High Court dated 07.09.2016 dismissing Letters Patent Appeal of the
appellants affirming the judgment of Learned Single Judge dated 25.02.2010.
Special Civil Application was filed by appellant challenging the order
dated 24.09.2099 passed by the State Government as well as the demand
notice dated 06.10.2009. Learned Single Judge dismissed the Writ Petition.

2. Brief facts of the case which are necessary to be noticed for deciding
this appeal are: –
The appellant no.1 is duly incorporated company under the provisions
of Companies Act, 1956 engaged in business of manufacturing and selling
steel products. The appellant no.2 is also a duly incorporated company
under the provisions of Companies Act, 1956, which is a generating company
selling/supplying electrical energy. The appellant no.1 company set up its
gas based steel plant at Hazira, in the year 1990 or thereabout for
production of HBI. It also set up a 20 MW Open Cycle Power Plant for
captive consumption of power for its HBI plant. On the application made by
the appellant no. 1 Company, the State Government granted exemption from
payment of electricity duty for a period of 10 years commencing from
21.07.1990 with respect to the said Open Cycle Power Plant. Subsequently,
the appellant no.1 Company converted the said Open Cycle Power Plant of 20
MW into 30 MW Combined Cycle Mode Power Plant by adding steam turbine.
Consequent upon such conversion, the appellant no.1 company was granted by
the State Government exemption from payment of electricity duty for a
period of 15 years commencing from 21.07.1990. In the year 1991, the
appellant no.1 company also desired to put up a composite plant after
making substantial investment for production of both HBI and HRC.
Therefore, in or about the year 1991-92, the appellant no.1 company thought
of setting up another Captive Power Plant of 300 MW of capacity in Combined
Cycle Mode at Hazira for meeting its requirement of more power. The
appellant thought of doing so, in view of the benefits available to the
Captive Power Plant at the relevant time. The Government of Gujarat and the
Gujarat Electricity Board granted in principle approval to the appellant
no.1 company for setting up the said Captive Power Plant of 300 MW. There
was, however, a change in the Power Policy of Government of India, in the
year 1991-92, which allowed the participation of private sector in power
generation. Government of Gujarat also, with a view to give effect to that
policy, issued a Notification dated 27.02.1992 under Section 3 of the
Bombay Electricity Duty Act, 1958(hereinafter referred to as 1958 Act). The
appellant no.1 Company, therefore, abandoned its plan to set up the said
Captive Power Plant of 300 MW in Combined Cycle Mode and in place and
instead thereof, promoted and incorporated a separate generating company
under the name and style of “ESSAR Power Limited”, the appellant no.2 is a
Special Purpose Vehicle promoted by the appellant no.1 company for supply
of power to the appellant no.1 company as well as to the Gujarat
Electricity Board.

3. The Government of Gujarat issued an Order dated 16.06.1995 agreeing
in principle to the demand of appellant no.2 to set up 510 MW generating
station at Hazira. The appellant no.2 started production of electricity
w.e.f. 08.08.1995. The appellant no.1 held equity shares of 42% of
appellant no.2 company. Out of 515 MW, 300 MW capacity has been allocated
to GEB (Gujarat Electricity Board) which constitute 58% of the installed
capacity, remaining capacity of 215 MW which constitute 42% to the ESSAR
Group of company as per the stipulation contained in the Power Purchase
Agreement dated 30.05.1996.

4. The appellant no.1 had filed an application dated 15.03.2001 seeking
exemption from payment of electricity duty under the notification dated
27.02.1992 issued under Section 3(3) of the Bombay Electricity Act, 1958
(hereinafter referred to as Act 1958). Another application dated 12.04.2001
was sent by appellant no.1 to the Commissioner of Electricity seeking
exemption from electricity duty for a period of 15 years under Section
3(2)(vii)(a)(i) of 1958 Act. The State of Gujarat Vide Order dated
23.12.2002 rejected the request for exemption under Section 3(2). The Order
dated 23.12.2002 was challenged in the High Court Wherein High Court vide
Order dated 17.03.2003 left open to the Government to take a fresh
decision. The State Government again by Order dated 23.01.2006 rejected the
application of appellant no.1 for grant of exemption for payment of
electricity duty for 215 MW power generation equivalent to 42% of the total
generation. The Writ Petition was again filed challenging the Order dated
23.01.2006 in which High Court set aside the Order dated 23.01.2006 and
directed the Government to pass a fresh Order. The State Government passed
the detailed Order dated 24.12.2009 rejecting the claim of appellant no.1
for exemption of payment of electricity duty both under Section
3(2)(vii)(a)(i) as well as under notification dated 27.02.1992. After
decision dated 24.09.2009 recovery notice dated 06.10.2009 was issued for
payment of electricity duty amounting to Rs.562/- Crores together with
interest totaling Rs.1038.27/- Crores for the period of April 2000 to
August 2009. The Order of State Government dated 24.09.2009 was challenged
by the appellants before the High Court by means of Special Civil
application no. 10946 of 2009. Learned Single Judge dismissed the Writ
Petition vide its judgment dated 25.02.2010 aggrieved against which Letters
Patent Appeal was filed by the appellants. In Letters Patent Appeal, an
interim order was granted on conditions:
The appellant shall pay a sum of Rs.50 Crores against the outstanding dues
of electricity by 30.04.2010 in two installments of Rs.20 Crores each.
The appellant no.1 shall further pay from 01.05.2010 a sum of Rs.15 Crores
every month against the outstanding dues of electricity.

5. The Letters Patent Appeal ultimately came to be dismissed by Division
Bench on 07.09.2016 against which judgment the present appeal has been
filed.

6. We have heard Shri Mihir Joshi, Senior Advocate for the appellants
and Shri C.A.Sundram, Senior Advocate appearing for the respondents.

7. Learned Counsel for the appellants contends that the issue is squarely
covered in its favour by a decision of this Court in A.P. Gas Power
Corporation Ltd. Versus AP State Regulatory Commission and another, (2004)
10 SCC 511, wherein it was held, inter alia, that the electricity generated
by a Special Purpose Vehicle and consumed by the participating member to
the extent of its equity contribution would amount to captive consumption
of electricity. The High Court in the impugned judgment, however,
distinguished the aforesaid judgment of this Court on the ground that in
that case the parties were governed by a Memorandum of Understanding
(“MoU”) which was not there in the present case and secondly, on the ground
that ESIL was purchasing 215 MW of power from EPL.

8. It is further submitted that rejection of the application on the
ground that same was not made in the prescribed form under Rule 11 of
Bombay Electricity Duty Rules, 1968 is erroneous and had the rejection
being only on the ground of non-filing the application at the first stage
same could have been done since the State had power to condone the delay.
Alternatively, the appellant was entitled for exemption under notification
dated 27.02.1992 by reason of the fact that ESIL was jointly generating
electricity with EPL and had also purchased the generating sets by making
payments of the purchase price to the vendors during the period prescribed.
It is further contended that in the similar circumstances the Government of
Gujarat had extended the benefit of exemption from payment of electricity
duty to GIPCL and therefore, ESIL who is similarly situated cannot be
deprived of benefits of exemption.

9. Learned Counsel appearing for the State refuting aforesaid submission
contends that Government as well as High Court has rightly rejected the
claim of exemption of duty. The appellant neither fulfills the statutory
requirements under Section 3(2) nor fulfill the conditions of the
notification dated 27.02.1992. ESSAR Power and ESSAR Steel are separate and
independent legal entities. ESSAR Steel is not generating energy. ESSAR
Steel is not generating either singly or jointly with either GEB or its
successor entity, Gujarat Urja Vikas Nigam Limited or even with ESSAR
Power. ESSAR Power is not generating energy for its own use. ESSAR Power
Limited has established 515 MW power station, out of which 300 MW capacity
has been allocated to Gujarat Electricity Board (GEB). Thus 58% of the
installed capacity is allocated to GEB and in relation to such capacity;
ESSAR Power Limited generates and sells electricity as a generating station
and not as a captive Power Plant of GEB. The remaining capacity of 215 MW,
which constitutes 42%, is for ESSAR Group of Companies, as per the
stipulation contained in the Power Purchase Agreement dated 30.05.1996
entered into between ESSAR Power and GEB as well as the Power Purchase
Agreement dated 29.06.1996 entered into between ESSAR Power and ESSAR
Steel. The clauses in each of these agreements is clearly inconsistent with
ESSAR Power being treated as captive generation and use within the scope of
Section 3(2)(vii) of the 1958 Act. The appellant has rightly been
denied the benefit of exemption as claimed under the notification dated
27.02.1992. The condition of the notification dated 27.02.1992 specifically
states that the generating set or sets shall have to be purchased or
installed or commissioned during the period beginning from 01.01.1991 and
ending on 31.12.1992. This does not cover order placed for the purchase of
generating set. Since ESSAR Steel has merely placed the order for
generating set but neither purchased nor installed or generated within the
period specified in the aforesaid notification, it is not fulfilling this
condition and hence not entitled for benefits of the said notification. In
case of purchase, property in goods is transferred to the owner, here, in
given case, property in goods cannot be considered as transferred when same
is simply ordered.

10. Learned Counsel for the parties have placed reliance on various
judgments of this Court in support of their respective submission which
shall be referred to while considering the submissions in detail.

11. We have considered the submissions of Learned Counsel for the parties
and perused the records.

12. From the facts which have come on the record it is clear that
appellant no.1 had claimed exemption from duty under the provisions of
Section 3(2)(vii) as well as under the notification issued under Section
3(3) of 1958 Act for different period which exemption was earlier granted.
Details of benefit of exemption availed by appellant no.1 has been
extracted by Division Bench of High Court in Para 5.4 of the judgment. It
is useful to extract the table quoted in the judgment which is quoted below
to the following effect:

|Sr.|Date of |Prescrib|Applicable |Source of |Date of |Exemptio|
|No.|Applicat|ed Form |provision |electricity|Issue of|n period|
| |ion |No. for |for |supply |Certific| |
| |seeking |making |exemption | |ate of | |
| |exemptio|applicat|under GED | |Exemptio| |
| |n from |ion |Act, 1958 | |n | |
| |Duty | | | | | |
|(1)|(2) |(3) |(4) |(5) |(6) |(7) |
|1. |21.7.199|Form ‘E’|Sec. 3(2) |20 MW |1.9.1995|21.7.199|
| |0 | |(vii) (a) |+ 1380 KVA| |0 |
| | | |(ii) |+ 590 KVA | |to |
| | | | |+ 1500 KVA | |29.9.199|
| | | | |of | |9 |
| | | | |Self-genera| | |
| | | | |ting sets | | |
| | | | |of ESSAR | | |
| | | | |Steel | | |
|2. |30.7.199|Form ‘F’|Sec. 3(2) |GEB |28.1.199|19.12.19|
| |0 | |(vii) |connection |2 |91 to |
| | | |(b) |No HT 159 | |26.3.199|
| | | | | | |5 |
|3. |May, |Form ‘F’|Notification|GEB |6.9.1995|31.3.199|
| |1995 | |dt. |connection | |5 |
| | | |30.6.1993 |No HT 0159/| |to |
| | | |issued under|HT 10029 | |30.3.200|
| | | |Sec. 3(3) |+ 215 MW | |0 |
| | | | |from ESSAR| | |
| | | | |Power | | |
| | | | |(exclusivel| | |
| | | | |y for HRC | | |
| | | | |Project) | | |
|4. |30.1.199|Form E |Sec. 3(2) |20 MW |26.11.19|15.12.19|
| |6 | |(vii) (a) |(existing) |98 |95 |
| | | |(i) |+ 11 MW | |to |
| | | | |i.e. Co- | |29.9.200|
| | | | |generation | |4 |
| | | | |plant | | |
13. In the present case, no application in the prescribed form as per
Rule 11 of the Rules was filed by the appellant no.1 and for the first time
the appellant had come up with an application dated 15.03.2001 seeking an
exemption under notification dated 27.02.1992 and subsequently on
12.04.2001 has again claimed exemption under Section 3(2)(vii)(a)(i) of
1958 Act. The exemption from payment of duty as claimed by the appellant is
in two parts. Firstly, under Section 3(2)(vii)(a)(i) of 1958 Act and
secondly, under the notification dated 27.02.1992. We proceed to examine
both the claim separately.

Claim under Section 3(2)(vii)(a)(i)

14. Section 3 of 1958 Act deals with “duty on units of energy consumed”.
Sub-Section 2 enumerates various circumstances under which duty shall not
be leviable on the units of energy consumed. Section 3(2)(vii)(a)(i) and
3(3) is quoted below:

“3. Duty on units of energy consumed… … …

(2) Electricity duty shall not be leviable on the units of energy
consumed………

(vii) for motive power and lighting in respect of premises used by an
industrial undertaking for industrial purpose, until the expiry of the
following period, that is to say-
In the case of an industrial undertaking which generates energy either
singly or jointly with any other industrial undertaking for its own use or
as the case may be, for the use of industrial undertakings which are
jointly generating the energy.
Fifteen years from the date of commencement of the Bombay Electricity Duty
(Gujarat Amendment) Act, 1983(hereinafter in this sub-section and sub-
sections (2A) and (2AA) referred to as “the commencement date”) or the date
of starting the generation of such energy whichever is later in such
generation of energy is by back pressure turbine or if such generation of
energy is obtained by co-generation.

(3) The State Government may, by notification in the Official
Gazette, and subject to such terms and conditions as may be specified
therein, reduce the rate of duty or remit the duty in respect of-
……”
15. The keywords in the statutory scheme are “generates energy either
singly or jointly with any other industrial undertaking for its own use or
as the case may be, for the use of industrial undertaking which are jointly
generating the energy.” We have to look into the facts of the present case
to find out as to whether the statutory conditions enumerated above are
satisfied in the facts of the present case or not. The appellant no.1 is a
separate registered company which holds 42% equity shares of the appellant
no.2. The appellant no.2 has been constituted as a Special Purpose Vehicle
for generating electricity. The appellant no.2 is a generating company
within the meaning of Section 2(4A) of Electricity (Supply) Act, 1948. The
submission which has been pressed by the counsel for the appellant is that
both the appellant no.1 and appellant no.2 are generating energy jointly
for the use of industrial undertaking which are jointly generating the
energy.

16. As noted above, there is a Power Purchase Agreement dated 30.05.1996
and 01.06.1996 which contains various conditions for sale of electricity by
appellant no.2. The State Government in its order dated 24.09.2009 has
extracted the recitals in Power Purchase agreement dated 01.06.1996 which
are to the following effect: –
“…WHEREAS the Company is a Generating Company as defined under clause
4(A) of Section 2 of the Electricity (Supply) Act, 1948

AND WHEREAS the Company has substantially implemented a 515 MW combined
Cycle Generating Station at Hazira Dist. Surat, Gujarat of which it has
already commissioned 3 x 110 MW Gas Turbine Generating Set an aggregate
generating Capacity of 330 MW.

AND WHEREAS the Company is setting up the said Generating Station and has
been permitted as a special case to supply power to its sister concerns
viz. ESSAR Steel Ltd. and ESSAR Oil Ltd, hereinafter jointly and severally
referred to as ‘ESSAR Group Companies’.

AND WHEREAS ESTL which is engaged in the manufacture of Steel products at
Hazira, intends to purchase electrical output generated by the Generating
Station equivalent to 138 MW capacity in the Open Cycle mode and 215 MW
capacity in Combined Cycle mode operation (hereinafter collectively or
severally referred to as the ‘Allocated Capacity’) on the terms and
conditions set forth in this Agreement.

16. Article 3 of the PPA dated 01.06.1996 between ESSAR Power Limited and
ESSAR Steel Limited reads as under:
3.1 ALLOCATION OF CAPACITY
The allocation of capacity shall be as under:
During Open Cycle mode operation prior to commissioning of the Combined
Cycle mode operation the Company shall allocate:
138 MW to the ESTL; and
192 MW to GEB
During Combined Cycle mode
215 MW to the ESTL; and
300 MW to GEB
………. ………………”
17. Even assuming appellant no.1 and appellant no.2 are jointly
generating the energy for the use of industrial undertaking which are
jointly generating the energy, the Gujarat Electricity Board to whom 300 MW
has been allocated cannot be held to be industrial undertaking which is
jointly generating the energy with appellant. The Statutory scheme for
grant of exemption has to be strictly construed. The appellant no.2 is not
jointly generating energy with Gujarat Electricity Board and it is selling
the energy to the extent of 300 MW to Gujarat Electricity Board. The
conditions of the statutory provisions of Section 3(2)(vii)(a) are not
fulfilled. The High Court has further held that both ESL and EPL being
distinct separate legal entities merely because ESL might have 42% shares
holding in EPL, it cannot be said that ESL is generating electricity
jointly with EPL and EPL is generating electricity jointly with ESL for use
of electricity by ESL.

18. The statutory conditions for grant of exemption as contained in
Section 3(2)(vii)(a) can neither be tinkered with nor diluted. Learned
Counsel for the appellant contends that the State Government had granted
permission to the ESSAR Power
Plant to set up a generating station as a special case and to supply power
generated by it to its sister concerned i.e. ESSAR Steel and ESSAR Oil as a
special case. The letter of the State Government dated 05.06.1995 further
stated that if there is any excess power generated by EPL, the same may be
purchased by the Board at the price decided by the Board. It is useful to
extract the letter of permission dated 05.06.1995 issued by the State
Government which was to the following effect:-

“The Govt. has considered all the aspect on the above matter and after
careful consideration, has decided to agree in principle to the demand of
ESSAR Power Limited to set up a generating station as a special case, and
to supply power generated by it to its sister concern, i.e. ESSAR Gujarat,
ESSAR Steels and ESSAR Oil again as a special case only subject to
fulfillment of requirements of legal provisions as laid down under Section
15-A and 18-A of the Electricity Supply Act and with the express condition
that the power generated through this subject shall never as sold outside
the State or to any other person except as mentioned above. Moreover, in
case, the power generated by EPL is to be wheeled, GEB shall decide the
wheeling rate according to the sound commercial principles. In addition to
this, if there is any excess power generated by EPL, the each may be
purchased by the Board, at a price decided by the Board subject to the
norms laid down by GoI from to time.
It is, therefore, requested that GEB may take further necessary
action in the matter.”
19. We have noticed above that Power Purchase Agreement allocated the
energy to the Gujarat Electricity Board to the extent of 58% and 42% power
supply was to be given to sisters concern i.e. ESSAR Gujarat, ESSAR Steel
and ESSAR Oil as a special case. It is well settled that taxing statute are
to be strictly construed specifically the exemption notification. It has
been held that the statutory provisions providing for exemption has to be
interpreted in the light of words employed in it and there cannot be any
addition or substraction from the statutory provision. This Court in
Commissioner of Central Excise, Surat-I versus Favourite Industries, 2012
(7) SCC 153, while considering exemption notification issued under Central
Excise Tariff Act, 1985 laid down following in paragraph 35 to 40:-
“35. The notification requires to be interpreted in the light of the words
employed by it and not on any other basis. There cannot be any addition or
subtraction from the notification for the reason the exemption notification
requires to be strictly construed by the courts. The wordings of the
exemption notification have to be given its natural meaning, when the
wordings are simple, clear and unambiguous.

36. In Commr. of Customs v. Rupa & Co. Ltd., this Court has observed that
the exemption notification has to be given strict interpretation by giving
effect to the clear and unambiguous wordings used in the notification. This
Court has held thus: (SCC pp. 413-14, para 7)

“7. … However, if the interpretation given by the Board and the Ministry is
clearly erroneous then this Court cannot endorse that view. An exemption
notification has to be construed strictly but that does not mean that the
object and purpose of the notification is to be lost sight of and the
wording used therein ignored. Where the wording of the notification is
clear and unambiguous, it has to be given effect to. Exemption cannot be
denied by giving a construction not justified by the wording of the
notification.”
(emphasis supplied)

37. In CCE v. Rukmani Pakkwell Traders, this Court has also held: (SCC p.
804, para 5)

“5. … It is settled law that exemption notifications have to be strictly
construed. They must be interpreted on their own wording. Wordings of some
other notification are of no benefit in construing a particular
notification.”
(emphasis supplied)

38. In Kohinoor Elastics (P) Ltd. v. CCE this Court has held: (SCC p. 533,
para 7)
“7. … When the wordings of the notifications are clear and unambiguous they
must be given effect to. By a strained reasoning benefit cannot be given
when it is clearly not available.”
(emphasis supplied)

39. In Compack (P) Ltd. v. CCE, this Court has observed thus: (SCC p. 306,
para 20)
“20. Bhalla Enterprises laid down a proposition that notification has to be
construed on the basis of the language used. Rukmani Pakkwell Traders16 is
an authority for the same proposition as also that the wordings of some
other notification are of no benefit in construing a particular
notification. The notification does not state that exemption cannot be
granted in a case where all the inputs for manufacture of containers would
be base paper or paperboard. In manufacture of the containers some other
inputs are likely to be used for which MODVAT credit facility has been
availed of. Such a construction, as has been suggested by the learned
counsel for the respondents, would amount to addition of the words ‘only
out of’ or ‘purely out of’ the base paper and cannot be countenanced. The
notification has to be construed in terms of the language used therein. It
is well settled that unless literal meaning given to a document leads to
anomaly or absurdity, the golden rule of literal interpretation shall be
adhered to.”
(emphasis supplied)

40. In CCE v. Mahaan Dairies, this Court has held: (SCC p. 800, para 8)
“8. It is settled law that in order to claim benefit of a notification, a
party must strictly comply with the terms of the notification. If on
wording of the notification the benefit is not available then by stretching
the words of the notification or by adding words to the notification
benefit cannot be conferred. The Tribunal has based its decision on a
decision delivered by it in Rukmani Pakkwell Traders v. CCE. We have
already overruled the decision in that case. In this case also we hold that
the decision of the Tribunal is unsustainable. It is accordingly set
aside.”
(emphasis supplied)”
20. The statutory provisions of Section 3(2)vii(a) thus have to be
strictly construed and in event the condition of generating energy jointly
with any other industrial undertaking is not fulfilled, the claim has to be
rejected.

21. Learned Counsel for the appellant submits appellant is claiming
exemption from excise duty only to the extent of its shareholdings i.e.
42%. The object for grant of exemption to the industrial undertaking which
generates energy either singly or jointly is for the use of industrial
undertaking which are jointly generating the energy. When in the present
case, 58% of the energy generated has been allocated to Gujarat Electricity
Board with whom appellant No. 2 is not jointly generating the energy, the
Statutory provisions has to be strictly construed and when energy being
generated is used by industrial undertaking which is not jointly generating
the energy the claim is not covered under Section 3(2)(vii)(a).
22. Learned Counsel for the appellant has also referred to the judgment
of this Court in State of U.P. and Ors. versus Renusagar Power Company &
Ors., 1988(4) SCC 59. In the above case, M/s Renusagar Company had obtained
a sanction to engage in the business of supply of electricity to M/s
Hindustan Aluminium Corporation Ltd. In the above case, this Court took the
view that corporate Veil should be lifted and Hindalco and Renusagar may be
treated as one concern and the Renusagar Powers Plant must be treated as
the owned source of generation of Hindalco. Following was held in paragraph
67:-
“67. In the aforesaid view of the matter we are of the opinion that the
corporate veil should be lifted and Hindalco and Renusagar be treated as
one concern and Renusagar’s power plant must be treated as the own source
of generation of Hindalco and should be liable to duty on that basis. In
the premises the consumption of such energy by Hindalco will fall under
Section 3(1)(c) of the Act. The learned Additional Advocate-General for the
State relied on several decisions, some of which have been noted.”
23. In the present case, there is no dispute to the fact that appellant
No.2 was created as a Special Purpose Vehicle by appellant No.1 itself. Had
appellant No.2 would have been supplying energy to appellant No.1 only, the
claim deserved consideration. But present is a case where the appellant
no.2 is supplying energy to industrial undertakings with whom it is not
jointly generating the energy. Judgment of this Court in State of U.P. and
Renusagar Company, thus, has no application in the facts of present case.

24. Learned Counsel for the appellant has placed reliance on judgment of
this Court in A.P. Gas Power Corporation Ltd. Versus A.P. State Regulatory
Commission & Another, 2004 (10) SCC 511. In the above case, the State
Government of Andhra Pradesh and Andhra Pradesh Electricity Board had
mooted the idea of setting up of 3 X 33 MW gas-based Combined Cycle Power
Station for establishing a generating station. It was decided to invite
private participation in the venture. A Memorandum of Understanding dated
17.10.1988 and on 19.04.1997 was entered according to which Andhra Pradesh
State Electricity Board had to have 26% shares in the new company to come
up as A.P.GPCL and rest of the participating industries were to have
different percentage of shares and the power so generated by company was to
share proportionately among the shareholding participating companies and
their sister concerns. The question which fell for consideration before
this Court was as to whether A.P.GPCL was required to take a license under
the law for utilization/sale and supply of power generated by the
participating industries, their sister concerns and the companies to whom
shares of APGPCL were transferred by the participating industries.

25. This Court after noticing the contents of various clauses of
Memorandum of Understanding and the provisions of Indian Electricity Act,
1910 and Andhra Pradesh Electricity Reform Act, 1998, laid down following
in paragraph 36 and 37:
“36. From the perusal of para 4 of the Memorandum of Understanding it is
clear that a participating industry has been given a right to transfer its
share of energy and power to its sister concern. The term “sister concern”
has been explained as “a concern under the same group.” There is no further
clarification or clue as to which are those concerns which may be
considered under the same group. The expression “sister concern” used in
para 4 of the Memorandum of Understanding certainly does not mean a concern
which is owned or is a subsidiary of the participating industry. It would
be a concern or unit different from the participating industry and not a
part of it. Maybe,that the same group may manage two different independent
units carrying on the same nature of activities. They may be addressed as
sister concerns but would definitely have separate entity and identity of
their own. Consumption of power, generated by a generating company, by a
concern which may be under the same group as any of the participating
industry cannot be said to be consumption or use of the power by the
participating industry itself. In absence of the element of self-
consumption by the generating company, it would not fall in the category of
“captive consumption”. It would surely be a supply to a non-participating
industry and in that event it would be necessary to have a licence under
the relevant provisions of law. If there is such a legal requirement,
merely an agreement amongst certain parties would not exclude the
application of law. Provisions of law regulating the situation would
prevail over any kind of agreement amongst some individuals as a group or
otherwise. We are, therefore, of the view that such a clause in the
Memorandum of Understanding would not do away with the requirement of
having a licence for supply of electricity generated by A.P.GPCL to such
concerns which may be under the same group as the participating industries
but not the participating industries themselves.

37. To support the view taken by us, a decision of this Court referred to
by the respondents may be cited as in State of U.P. Vs. Renusagar Power Co.
This case, however, was decided in a slightly different fact situation. M/s
Hindustan Aluminium Corporation Ltd. was established in 1959 on assurance
of providing cheap electricity to it. In the year 1964, however, M/s
Renusagar Power Co. Ltd. was established as a wholly owned and subsidiary
of M/s Hindustan Aluminium Corporation Ltd. It was generating electricity,
but incorporated separately and had its own separate Memorandum of
Understanding and Articles of Association. To raise the revenue for the
State, the U.P. Electricity (Duty) Act, 1952 was enforced to levy a duty on
the consumption of electricity. Several amendments were, however,
incorporated from time to time and ultimately a provision was inserted
providing that there would be levied and paid to the State Government a
duty called electricity duty on the energy sold to a consumer by a
licensee/Board/the Central Government. The duty on consumption of
electricity was leviable even though it may be from his own source of
generation. Renusagar Power Co. Ltd. had also obtained a licence under
Section 28 of the Act of 1910. In such circumstances, it was held that even
though Renusagar Power Co. Ltd. was a subsidiary company owned by M/s
Hindustan Aluminium Co. Ltd., yet it would amount to supply of electricity
by a licensee to a consumer in view of the provisions of the U.P. Act of
1952 which levied duty on consumption of electricity. The situation in the
case in hand is similar only to the extent that the participating
industries and the sister concerns are different entities and separately
incorporated. Distinction may be there in view of the statutory provisions
intervening under the U.P. Act of 1952 but that is not material for this
case.”
26. Ultimately, the appeal was partly allowed and judgment of the High
Court was modified vide paragraph 57 of the judgment which is to the
following effect: –

“57. We, therefore, hold that no licence is necessary for utilization of
energy generated by A.P.GPCL and utilized by the participating industries
and the concerns holding shares of A.P.GPCL transferred to them by the
participating industries to the extent of value of the shares so
transferred. It would, however, be necessary to have a licence for supply
of energy to the sister concerns. In the result, the appeals are partly
allowed and the judgment and order passed by the High Court stands modified
in the manner indicated above. Parties to bear their own costs.”
27. The judgment of Andhra Pradesh Gas Power Corporation Limited is
clearly distinguishable and does not help the appellant in present case. In
the aforesaid case the energy was utilized by the participating industries
and the concerned holding shares of A.P.GPCL but supply of energy to the
sister concerned was required to have license. Present is a case where
Gujarat Electricity Board who has been allocated 300 MW is not a
participating industry nor appellant no.2 is jointly generating the energy
with Gujarat Electricity Board, even if it is held that the appellant no.1
to the extent it holds 42% equity shares of appellant no.2 is jointly
generating the energy. The Gujarat Electricity Board which has been
allocated 58% of electricity generated can not be said as the industrial
undertaking jointly generating the energy.

28. The judgment of this Court in Gujarat Urja Vikas Nigam Ltd. Versus
ESSAR Power Limited, 2016(9) SCC 103, has also been referred to. The above
case was a case where parties to the present appeal were at issue and
appeal was filed by Gujarat Urja Vikas Nigam, successor of Gujarat
Electricity Board under Section 125 of the Electricity Act against the
Order of Appellate Tribunal of electricity. The appellant had filed the
petition before the Gujarat Electricity Regulatory Commission for
adjudication of the dispute arising out of Power Purchase agreement. The
appellant had sought compensation for wrongful allocation of electricity by
EPL to the sister concerned i.e. ESSAR Steel Limited in preference to the
appellant. The Commission had occasion to examine various clauses of Power
Purchase Agreement dated 30.05.1996 between the parties. This Court
rejected the contention of the EPL that it could sell power to ESL beyond
its allocated capacity. In the paragraph 22 of the judgment following was
held: –

“22. The agreement clearly contemplates the proportion of allocation of a
capacity. EPL has to fuel and operate the generating station to meet the
requirement of electric output that can be generated corresponding to the
allocated capacity. The appellant has to pay annual fixed cost as
determined in terms of Clause 7.1.1 of Schedule VII of the agreement. The
Commission is thus, right in observing that once the entire capacity has
been allocated in two parts in a particular proportion, the contention of
EPL that it could sell power to ESL beyond the allocated capacity could not
be accepted. EPL was under obligation as per Schedule VI to declare weekly
schedule of the capacity available and the dispatch instructions were to be
issued on the basis of the said declaration. It could not thus be said that
EPL had no obligation to declare the capacity and the obligation of GUVNL
to issue dispatch instructions was not dependent on declaration of the
available capacity by EPL. Contrary view of the Tribunal is clearly
erroneous. In para 45 and 46 and elsewhere in its judgment, the Tribunal
erred in holding that there was no obligation to declare available capacity
on proportionate basis. The finding of the Commission in paras 9.5 to 9.12
of its order quoted above is the correct interpretation of the agreement.
We hold accordingly.”

29. In the above case the question of exemption in excise duty within
meaning of Section 3(2) of 1958 Act had not arisen nor the question was
considered whether EPL can be held to be generating energy jointly with
appellant no.1 and Gujarat Electricity Board. For the issues which have
arisen in the present case, the above judgment does not render any help.

30. Learned Counsel for the appellant has submitted that the High Court
had rejected the claim of payment only on the ground that there is no such
Memorandum of Understanding between EPL and ECL as was found in A.P. Gas
Power Limited (Supra). The High Court although has noted the fact that in
the present case there is no such Memorandum of Understanding between EPL
and ECL but the judgment of the High Court is not based only on the above
premise rather High Court has clearly found that conditions stipulating
under Section 3(2)(vii)(a)(i) of 1958 Act are not satisfied, hence,
appellant no.1 is not entitled for exemption. High Court has elaborately
considered all the submission raised by the appellant and rightly came to
the conclusion that conditions as enumerated in Section 3(2)(vii)(a) are
not fulfilled. We do not find any error in the aforesaid finding of the
High Court.

Claim under notification dated 27.02.1992

31. The notification dated 27.02.1992 was issued in exercise of power
conferred by Section 3(3) of Bombay Electricity Act, 1958. The relevant
part of the notification dated 27.02.1992, is as follows: –

“NOTIFICATION
Sachivalaya Gandhinagar
27th February, 1992

BOMBAY ELECTRICITY DUTY ACT, 1958

No. GHC/92/10/JCP/1188/2594/K

In exercise of the powers conferred by Sub Section (3) of the Section 3 of
the Bombay Electricity Duty Act,1958(Bom. XL of 1958), the Government of
Gujarat hereby remitted with effect on and from the date of publication of
this notification in the Official Gazette. In the whole of the State of
Gujarat, the Electricity Duty payable under item (6) of Part I of Schedule
II to the said Act, on the energy consumed for motive power and lighting
for Industrial purposes by industrial under takings which generate energy
jointly for their own use either by establishing an independent joint
company solely for this purpose or on pro-rata cost sharing basis, for a
period of ten years from the date of commissioning of the generating sets
subject to the following terms and conditions namely:-

The generating set or sets shall have been purchased and installed or
commissioned during the period beginning from 1st January, 1991 and ending
on 31st December, 1992. Providing that such generating act or sets shall
not have been previously used in the State.

****** ******”
32. The claim raised by the appellant under the above said notification
was specifically dealt by the High Court and the Government. The condition
which was found lacking for applicability of the notification was that
generating sets were not purchased or installed or commissioned during the
period from 01.01.1991 to 31.12.1992. The High Court has recorded
categorical finding that the generating sets have been commissioned in the
month of August 1995. It is useful to refer to paragraph 12.0 of the
judgment of Division Bench which is to the following effect: –
“12.0. Now, so far as the alternative claim of the appellants to grant
the exemption for a period of 10 years under the Notification dated
27.02.1992 is concerned, on considering Notification dated 27.02.1992, it
appears that the conditions precedent laid down in the said notification
cannot be said to have been compiled by the appellants more particularly
appellant No.1 – ESL. For claiming the benefit of notification dated
27.02.1992 it is to be established that the generating set or sets have
been purchased/installed or commissioned during the period beginning from
01.01.1991 and ending on 31.12.1992. From the record it appears that the
generating sets have been commissioned in the month of August 1995, the
appellants have failed to establish that the generating sets were even
purchased during the aforesaid period. It cannot be disputed that in a
taxing statute more particularly with respect to the exemption from payment
of duty, all the conditions which can be said to be statutory are required
to be fulfilled and unless and until all the conditions stipulated in the
exemption notification are satisfied and/or compiled with, there shall not
be any exemption under the notification. In the present case, admittedly,
the generating sets in question have been commissioned in the month of
August 1995. The appellants have failed to establish that they even
purchased the generating sets during the period beginning from 01.01.1991
to 31.12.1992. More placement of order for purchase cannot amount to actual
purchase of the generating sets.”
33. Another reason given by the High Court was that no application was
made within 180 days of application of the notification dated 27.02.1992 or
even from the date of installation of generating sets i.e. August 1995.
Even if the second reason given by the High Court is ignored, non-
fulfillment of condition no.(a) of notification dated 27.02.1992 clearly
entailed rejection of claim under notification dated 27.02.1992. There is
no foundation or basis laid down even in this appeal to assail the finding
recorded by the High Court that generating set was not purchased from
01.01.1991 to 31.12.1992.

34. We thus do not find any error in rejection of claim of appellant
under the notification dated 27.02.1992.

35. The High Court has rightly negatived the claim of the appellant under
Section 3(2) as well as under the notification dated 27.02.1992 issued
under Section 3(3). We do not find any merit in this appeal, the appeal is
accordingly dismissed.
………………….J.
(A. K. SIKRI)
………………….J.
(ASHOK BHUSHAN)

NEW DELHI,
MAY 02, 2017

Posted in Uncategorized

(i) Evidence of PW-2 cannot be used against respondent herein for the reason of improvement in statement; (ii) The testimony of PW-1 showing his conduct as against human nature is not worthy of credence for the reason that he did not actually see the accused persons; (iii) Evidence of recovery of weapon and other articles may be relevant, but could not be relevant against accused-respondent herein; and (iv) Adverse inference cannot be drawn by the Court on refusal to give specimen palm impression in spite of the order of the Court.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1432-1434 OF 2011
STATE OF U.P. … … …APPELLANT(S)
:VERSUS:
SUNIL … … …RESPONDENT(S)
WITH
CRIMINAL APPEAL NOS.1423-1424 OF 2011
REKHA SENGAR … … …APPELLANT(S)
:VERSUS:
STATE OF U.P. & ANR. … …RESPONDENT(S)
J U D G M E N T
Pinaki Chandra Ghose, J.
1. Present appeals have been directed against the judgment dated 23rd
May, 2008 passed by the High Court of Judicature at Allahabad in
Criminal Appeal No.2968 of 2007 with Criminal (Jail) Appeal No.2757 of
2007 and Capital Reference No.12 of 2007, whereby judgment and order
dated 04.04.2007 passed by the learned Additional Sessions Judge,
Etawah in Sessions Trial No.424 of 2000 was set aside and the accused-
respondent was acquitted of the offence punishable under Section 302
read with Section 34 of the Indian Penal Code. Capital Sentence
Reference for confirmation of the death sentence was consequently
rejected.
2. Brief facts necessary for adjudication of the present case are as
follows: One Kumari Rekha Sengar (PW-2), who is the complainant in
the present case, got a phone call from her mother Smt. Shashi Prabha
(now deceased) at about 11.00 to 11.30 pm on 02.09.2000 narrating that
complainant’s brother-in-law (Jeeja), namely, Suresh Pal Singh @ Guddu
along with his friend had come to their house in Etawah, Uttar
Pradesh, demanding Rs.50,000/- from her father and on refusal to meet
the demand, they became very angry. The complainant herself had a talk
with her brother-in-law and tried to pacify him but she failed as he
cut the telephone call. Later when the complainant failed to have
further communication on telephone, she left for her parents’ house
from Delhi. On reaching her parents’ house she saw dead bodies of her
father, mother, two sisters and their pet dog. Law was set into motion
after an FIR was registered by the complainant on the basis of written
report. The said Suresh Pal Singh was arrested on 04.09.2000 and on
the basis of the confessional statement made by the accused, a knife,
blood-stained clothes and other articles were recovered by the
Investigating Officer (PW-7) in the presence of PW-4 and recovery memo
Ext. Ka-8 was made. Involvement of respondent herein was also
unearthed on the basis of the said confessional statement. After
conclusion of the investigation charge-sheet was submitted before the
learned Magistrate who committed the case to the Court of Additional
Sessions Judge, Etawa, U.P. Accused Suresh Pal Singh died during the
trial and therefore criminal proceedings against him stood abated. The
Trial Court convicting the accused Sunil under Sections 302 & 429 read
with Section 34 of IPC and awarded death sentence to him and imposed a
fine of Rs.500/- for offence under Section 429 of IPC.
3. Being aggrieved, the accused-respondent preferred Criminal Appeal
No.2968 of 2007 and Criminal (Jail) Appeal No.2757 of 2007 before the
High Court. Capital Sentence Reference No.12/2007 was made by the
Additional Sessions Judge, Etawa. The High Court by its judgment and
order dated 23rd May, 2008 set aside the order of conviction and
sentence passed by the Trial Court and acquitted the accused-
respondent. Consequently, Capital Sentence Reference No.12 of 2007 was
rejected by the High Court. Hence, the State of U.P. and the
complainant are before us by filing Criminal Appeal Nos.1432-1434 of
2011 and Criminal Appeal Nos.1423-1424 of 2011, respectively.
4. We have noticed that the High Court had allowed the criminal appeal of
accused-respondent on the basis of failure on the part of the
prosecution to prove its case beyond all reasonable doubt and on the
basis of circumstantial evidence. The High Court in its finding made
four important observations: (i) Evidence of PW-2 cannot be used
against respondent herein for the reason of improvement in statement;
(ii) The testimony of PW-1 showing his conduct as against human
nature is not worthy of credence for the reason that he did not
actually see the accused persons; (iii) Evidence of recovery of weapon
and other articles may be relevant, but could not be relevant against
accused-respondent herein; and (iv) Adverse inference cannot be drawn
by the Court on refusal to give specimen palm impression in spite of
the order of the Court.
5. We have heard the learned counsel for the parties at considerable
length. During the course of hearing, learned counsel for the State of
U.P. has submitted written arguments. It is the submission of the
learned counsel for appellants that the case has been proved on the
basis of circumstantial evidence. PW-1 has proved the factum of both
accused last seen together outside the main door of house of deceased.
This witness also identified both the accused before the Trial Court.
Memo of recovered articles as a result of disclosure statement was not
only admissible against accused Suresh Pal (now deceased) but is also
admissible against accused-respondent herein. It was further submitted
that confessional statement of the co-accused who died pending trial
is relevant against the accused-respondent also. He therefore relied
upon the judgment of this Court in the case of Haroon Haji Abdulla Vs.
State of Maharashtra, AIR 1968 SC 832 = (1968) 2 SCR 641, wherein this
Court observed:
“No doubt both Bengali and Noor Mohammad retracted their
statements alleging duress and torture. But these allegations
came months later and it is impossible to heed them. The
statements were, therefore, relevant. Both Bengali and Noor
Mohammad were jointly tried with Haroon right to the end and all
that remained to be done was to pronounce judgment. Although
Bengali was convicted by the judgment, the case was held abated
against him after his death. In Ram Sarup Singh and Others v.
Emperor-(1), J was put on his trial along with L; the trial
proceeded for some time and about six months before the delivery
of judgment, when the trial had proceeded for about a year, J
died. Before his death J’s confession had been put on the
record. R. C. Mitter, J. (Henderson, J. dubitante) allowed the
confession to go in for corroborating other evidence but not as
substantive evidence by itself. Of course, the confession of a
person who is dead and has never been brought for trial is not
admissible under S. 30 which insists upon a joint trial. The
statement becomes relevant under s. 30 read with S. 32(3) of the
Evidence Act because Bengali was fully tried jointly with
Haroon. There is, however, difficulty about Noor Mohammad’s
statement because his trial was separated and the High Court has
not relied upon it.”
6. Learned counsel for the State of U.P. concluded his arguments by
submitting that the prosecution version was not only corroborated by
medical evidence of PW-5 and PW-6 but was also confirmed by FSL
Report, which proved presence of human blood on the weapon of murder
and clothes of both the accused. Since comparison of finger-prints and
foot-prints were not clear, the Trial Court directed both the accused
to give fresh foot-prints and finger-prints. On refusal to comply with
this order by the accused for almost five years, even when the same
was upheld in criminal revision before the High Court, the National
Crime Records Bureau, New Delhi and the Trial Court had rightly
treated it as an adverse inference against the accused-respondent
herein.
7. Learned counsel appearing for the accused-respondent, on the other
hand, submitted that the recovery of bag and articles (Ext.1) cannot
be made admissible against co-accused who is respondent herein.
Prosecution has not produced any witness or evidence to connect the
accused-respondent with recovered bag or articles. The complainant (PW-
2) has also improved her statement apropos presence of the accused-
respondent. But, surprisingly, there was no mention of name or other
details of the accused-respondent either in the written complaint/FIR
or in the statement made before police. Learned counsel for the
accused-respondent stoutly defended his client by concluding that
drawing adverse inference against the accused due to his refusal to
give specimen palm impression was not justified as earlier palm
impression report came in negative and application moved by the
accused praying for sending footprints and fingerprints to some other
laboratory was rejected by the Trial Court vide order dated
09.01.2007.
8. After careful perusal of the evidence and material on record, we are
of the considered opinion that the following question would play a
crucial role in helping us reaching an upright decision:
Whether compelling an accused to provide his fingerprints or
footprints etc. would come within the purview of Article 20(3)
of the Constitution of India i.e. compelling an accused of an
offence to be a “witness” against himself?
It would be relevant to quote Article 20(3) of the Constitution of
India which reads as follows:
“Article 20: Protection in respect of conviction for offences.
(1) … … …
(2) … … …
(3) No person accused of any offence shall be compelled to be a
witness against himself.”
9. The answer to the question above-mentioned lies in judicial
pronouncements made by this Court commencing with celebrated case of
State of Bombay Vs. Kathi Kalu Oghad & Ors., (1962) 3 SCR 10, wherein
it was held:
“To be a witness’ may be equivalent to ‘furnishing evidence’ in
the sense of making oral or written statements, but not in the
larger sense of the expression so as to include giving of thumb
impression or impression of palm or foot or fingers or specimen
writing or exposing a part of the body. ‘Furnishing evidence’ in
the latter sense could not have been within the contemplation of
the Constitution-makers for the simple reason that – thought
they may have intended to protect an accused person from the
hazards of self incrimination, in the light of the English Law
on the subject – they could not have intended to put obstacles
in the way of efficient and effective investigation into crime
and of bringing criminals to justice. The taking of impressions
or parts of the body of an accused person very often becomes
necessary to help the investigation of a crime. It is as much
necessary to protect an accused person against being compelled
to incriminate himself, as to arm the agents of law and the law
courts with legitimate powers to bring offenders to justice.”
10. We may quote another relevant observation made by this Court in the
case of Kathi Kalu Oghad, (supra).
“When an accused person is called upon by the Court or any other
authority holding an investigation to give his finger impression
or signature or a specimen of his handwriting, he is not giving
any testimony of the nature of a ‘personal testimony’. The
giving of a ‘personal testimony’ must depend upon his volition.
He can make any kind of statement or may refuse to make any
statement. But his finger impressions or his handwriting, in
spite of efforts at concealing the true nature of it by
dissimulation cannot change their intrinsic character. Thus, the
giving of finger impressions or of specimen writing or of
signatures by an accused person, though it may amount to
furnishing evidence in the larger sense, is not included within
the expression ‘to be a witness.”
11. In Selvi Vs. State of Karnataka, (2010) 7 SCC 263, a three-Judge Bench
of this Court while considering testimonial character of scientific
techniques like Narco analysis, Polygraph examination and the Brain-
Electric activation profile held that
“145. The next issue is whether the results gathered from the
impugned tests amount to ‘testimonial compulsion’, thereby
attracting the prohibition of Article 20(3). For this purpose,
it is necessary to survey the precedents which deal with what
constitutes ‘testimonial compulsion’ and how testimonial acts
are distinguished from the collection of physical evidence.
Apart from the apparent distinction between evidence of a
testimonial and physical nature, some forms of testimonial acts
lie outside the scope of Article 20(3). For instance, even
though acts such as compulsorily obtaining specimen signatures
and handwriting samples are testimonial in nature, they are not
incriminating by themselves if they are used for the purpose of
identification or corroboration with facts or materials that the
investigators are already acquainted with. The relevant
consideration for extending the protection of Article 20(3) is
whether the materials are likely to lead to incrimination by
themselves or ‘furnish a link in the chain of evidence’ which
could lead to the same result. Hence, reliance on the contents
of compelled testimony comes within the prohibition of Article
20(3) but its use for the purpose of identification or
corroboration with facts already known to the investigators is
not barred.
146. It is quite evident that the narco analysis technique
involves a testimonial act. A subject is encouraged to speak in
a drug-induced state, and there is no reason why such an act
should be treated any differently from verbal answers during an
ordinary interrogation. In one of the impugned judgments, the
compulsory administration of the narco analysis technique was
defended on the ground that at the time of conducting the test,
it is not known whether the results will eventually prove to be
inculpatory or exculpatory. We have already rejected this
reasoning. We see no other obstruction to the proposition that
the compulsory administration of the narco analysis technique
amounts to ‘testimonial compulsion’ and thereby triggers the
protection of Article 20(3).”
12. Thus, we have noticed that albeit any person can be directed to give
his foot-prints for corroboration of evidence but the same cannot be
considered as violation of the protection guaranteed under Article 20
(3) of the Constitution of India. It may, however, be noted that non-
compliance of such direction of the Court may lead to adverse
inference, nevertheless, the same cannot be entertained as the sole
basis of conviction.
13. In a case where there is no direct witness to prove the prosecution
case, conviction of the accused can be made on the basis of
circumstantial evidence provided the chain of the circumstances is
complete beyond all reasonable doubt. It was observed by this Court in
the case of Prakash vs. State of Karnataka, (2014) 12 SCC 133, as
follows:
“51. It is true that the relevant circumstances should not be
looked at in a disaggregated manner but collectively. Still,
this does not absolve the prosecution from proving each relevant
fact.
“6. In a case of circumstantial evidence, each circumstance
must be proved beyond reasonable doubt by independent evidence
and the circumstances so proved, must form a complete chain
without giving room to any other hypotheses and should be
consistent with only the guilt of the accused. (Lakhjit Singh
Vs. State of Punjab, 1994 Supp (1) 173)”
14. It has also been the observation of this Court in Musheer Khan Vs.
State of M.P., (2010) 2 SCC 748, apropos the admissibility of evidence
in a case solely based upon circumstantial evidence that
“55. Section 27 starts with the word `provided’.
Therefore, it is a proviso by way of an exception to Sections 25
and 26 of the Evidence Act. If the facts deposed under Section
27 are not voluntary, then it will not be admissible, and will
be hit by Article 20(3) of the Constitution of India. [See State
of Bombay vs. Kathi Kalu Oghad, [AIR 1961 SC 1808].
56. The Privy Council in Pulukori Kottaya vs. King Emperor,
[1947 PC 67] held that Section 27 of the Evidence Act is not
artistically worded but it provides an exception to the
prohibition imposed under the preceding sections. However, the
extent of discovery admissible pursuant to the facts deposed by
accused depends only to the nature of the facts discovered to
which the information precisely relates.
57. The limited nature of the admissibility of the facts
discovered pursuant to the statement of the accused
under Section 27 can be illustrated by the following example:
Suppose a person accused of murder deposes to the police officer
the fact as a result of which the weapon with which the crime is
committed is discovered, but as a result of such discovery no
inference can be drawn against the accused, if there is
no evidence connecting the knife with the crime alleged to have
been committed by the accused.
58. So the objection of the defense counsel to the discovery
made by the prosecution in this case cannot be sustained. But
the discovery by itself does not help the prosecution to sustain
the conviction and sentence imposed on A-4 and A-5 by the High
Court.”
15. From a perusal of the evidence on record, it could without any
hesitation be said that the basic foundation of the prosecution had
crumbled down in this case by not connecting the respondent with the
incident in question. And when basic foundation in criminal cases is
so collapsed, the circumstantial evidence becomes inconsequential. In
such circumstances, it is difficult for the Court to hold that a
judgment of conviction could be founded on the sole circumstance that
recovery of weapon and other articles have been made.
16. After examining every evidence and material on record meticulously and
in the light of the judgments cited above, we are of the considered
opinion that the prosecution has miserably failed to connect the
occurrence with respondent herein. Resultantly, the judgment and order
passed by the High Court setting aside of conviction order passed by
the Trial Court is hereby upheld.
17. The appeals are, accordingly, dismissed.
………………………….
….J
(Pinaki Chandra Ghose)

………………………….
….J
(Rohinton Fali Nariman)
New Delhi;
May 02, 2017.

Posted in Uncategorized

HOW TO CONDUCT A SALE AND WHEN THE SALE CAN BE SET ASIDE – BRIEFLY COVERED – USEFUL TO JUNIORS =Order 21 Rule 90 (2) of the Code.= “90. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.”- We also find on facts that firstly, the proper publicity was given for auction sale in papers so also by beat of drums pursuant to which as many as seven bidders including the appellant herein participated in the auction sale. Had there been no publicity, it would not have been possible for seven persons to participate in the auction proceedings. – Secondly, the details of the valuation of the property were duly mentioned, namely, decree holder’s valuation at Rs.2,75,000/- likewise, Amin’s valuation at Rs.4 lacs whereas the property was sold in auction for Rs.7,50,000/-. In this view of the matter, it could not be said that the bidders did not know the valuation or/and that it was not mentioned in the auction papers.- Thirdly, judgment debtor did not adduce any evidence nor brought any bidder to purchase the property for a higher price than the purchase bid (Rs.7,50,000/-) except to say in the application that value of the property was between Rs.12 lakhs to Rs.14 lakhs. In our view, this objection has no substance for want of any evidence. – Fourthly, there was adequate publicity given with the aid of beat of drums in the locality. It was proved with the record of the executing Court as was rightly held by the executing Court and lastly, in our view, a clear 15 days’ notice was given for auction sale fixed for 17.11.1999 when counted from 05.10.1999. In other words, 15 days have to be counted from 05.10.1999 because it is on this date the order was issued as contemplated under Order 21 Rule 64 for proclamation of sale fixing the date of sale as 17.11.1999.- The executing Court, therefore, substantially and in letter and spirit followed the procedure prescribed under Order 21 Rules 64 and 66 of the Code while conducting the sale of the property in question- The law on the question involved herein is clear. It is not the material irregularity that alone is sufficient for setting aside of the sale. The judgment debtor has to go further and establish to the satisfaction of the Court that the material irregularity or fraud, as the case may be, has resulted in causing substantial injury to the judgment- debtor in conducting the sale. It is only then the sale so conducted could be set aside under Order 21 Rule 90(2) of the Code. Such is not the case here.- there are no material irregularities noticed in the case and that there was compliance of the provisions of Order 21 Rules 64 to 68 then, in our view, the law laid down in these decisions are of no help to the respondent-judgment debtor.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.5988 OF 2007
Chilamkurti Bala Subrahmanyam ….Appellant(s)

VERSUS

Samanthapudi Vijaya Lakshmi
& Anr. …Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed by the auction purchaser against the final
judgment and order dated 23.12.2005 passed by the High Court of Judicature,
Andhra Pradesh at Hyderabad in Civil Misc. Appeal No. 1721 of 2000 whereby
the High Court allowed the appeal filed by judgment debtor-respondent No.1
herein and set aside the order dated 20.04.2000 passed by the Senior Civil
Judge, Kovvur in E.A. No. 1020 of 1999 in E.P. No. 46 of 1998 in O.S. No.
192 of 1987 dismissing the application filed by the judgment debtor under
Order 21 Rule 90 read with 151 of the Code of Civil Procedure, 1908
(hereinafter referred to as “the Code”).
2) Facts of the case need mention, in brief, to appreciate the
controversy involved in this appeal.
3) Respondent No.2-State Bank of India is the plaintiff/decree holder
whereas respondent No.1 is the defendant/judgment debtor in O.S. No.192 of
1987. Respondent No.2 obtained a money decree for Rs.5,15,390/- against
respondent No.1 on 16.03.1998 in O.S. No.192 of 1987 for the loan given to
her by respondent No.2 and which remained unpaid by respondent No.1. Since
respondent No.1 failed to satisfy the decree, respondent No.2 filed
execution application and brought the schedule property owned by respondent
No.1-judgment debtor to auction sale through the process server of the
Court of Senior Civil Judge, Kovvur, in execution proceedings in E.P. No.
46 of 1998 in O.S. No.192 of 1987 for realization of decretal dues.
4) The suit schedule property was, accordingly, attached by the
executing Court under a warrant. Notice was, accordingly, issued to
respondent No.1-judgment debtor in respect of the said executing
proceedings on 14.07.1999 to which she filed counter affidavit raising
certain objections. On 31.09.1999, the executing Court overruled the
objections raised by respondent No.1 in her counter affidavit and fixed
22.09.1999 as the date of settlement of terms. On 22.09.1999, the terms of
proclamation of sale were settled fixing the date for sale of the said
property on 17.11.1999.
5) Pursuant to the above referred proceedings, proclamation of the sale
was issued on 05.10.1999 by the executing Court under Order 21 Rule 64 of
the Code mentioning therein the conditions of sale. Proclamation of the
sale was entrusted to the Process Server of publication on 27.10.1999. The
Process Server gave endorsement on 02.11.1999 that the sale proclamation
was affixed to the house/suit schedule property and also by beat of tom tom
near the property and also affixed the same on the notice board of the
Court. On 04.11.1999, sale warrant was issued to the Bailiff to give 15
days’ notice by affixing the same in court house, making due proclamation
of the suit schedule property. The proclamation of the sale was published
in the newspaper on 05.11.1999 stating that the sale would be held on
17.11.1999.
6) On 17.11.1999, the property was brought to auction sale where 7
bidders participated. The appellant herein was the highest bidder of
Rs.7,15,000/-. Out of the said bid amount, Rs.1,78,750/- was paid to the
Bailiff. The Bailiff filed a return on 18.11.1999 about the sale stating
that he published about sale by tom tom and the appellant was the highest
bidder and the initial amount was deposited with respondent No.2-Bank after
deducting poundage.
7) Dissatisfied with the auction, the judgment debtor filed an
application under Order 21 Rule 90 seeking setting aside of the sale, inter
alia, on the ground that the proclamation was done within 15 days and hence
it is illegal, tom tom wala neither made proclamation and nor took
neighbours’ signatures, proclamation was not published in Nagar Panchayat
office, publication was defective in nature because it did not mention the
valuation of the property etc. It was also objected that the Bank brought
only three bidders whereas if more bidders had participated, the property
put to sale would have fetched easily between 12 to 14 lakhs.
8) By order dated 20.04.2000, the Senior Civil Judge, Kovvur found no
merit in any of the objections raised by respondent No.1 and accordingly
dismissed the application.
9) Challenging the said order, the judgment debtor-respondent No.1 filed
an appeal before the High Court.
10) The High Court, by impugned judgment dated 23.12.2005, allowed the
appeal and set aside the order of the executing Court, inter alia, holding
that if the judgment debtor deposits a sum of Rs.7,15,000/- being the price
fetched at the public auction within a period of three weeks from the date
of receipt of a copy of the judgment, the sale held would not be given
effect to. It was held that if the executing Court feels that the amount
deposited by the judgment debtor is sufficient to discharge the decretal
amount, it would not be necessary to put the property to auction and the
amount so deposited earlier by the auction purchaser shall be refunded to
him. It was held that if the amount ordered to be deposited by the
judgment debtor is more than the amount due to the decree holder, excess
amount, after adjusting the amount due to the decree holder/auction
purchaser, be refunded to the judgment debtor. It was held that no clear
15 days’ notice of sale as per Rules was given and hence sale held is
irregular. It was lastly held that in default of payment of Rs.7,15,000/-
within the stipulated period, the appeal shall stand dismissed.
11) Aggrieved by the said judgment, the auction purchaser has filed this
appeal by way of special leave before this Court.
12) Heard Mr. Basava Prabhu Patil, learned senior counsel for the
appellant-auction purchaser and Mr. Gagan Gupta, learned counsel for
respondent No.1-judgment debtor and Mr. Sanjay Kapur, learned counsel for
the Bank-decree holder.
13) Having heard the learned counsel for the parties and on perusal of
the record of the case, we are inclined to allow the appeal finding merit
therein.
14) The law which governs the controversy involved in this appeal is laid
down by this Court in the case of Saheb Khan vs. Mohd. Yousufuddin & Ors.,
2006(4) SCC406 (Three Judge Bench). While examining the scope of Order 21
Rule 90 of the Code, Justice Ruma Pal speaking for the Bench held as under
:
“12. We are unable to sustain the reasoning of the High Court. Order 21
Rule 90 of the Code of Civil Procedure allows, inter alia, any person whose
interests are affected by the sale to apply to the court to set aside a
sale of immovable property sold in execution of a decree on the ground of
“a material irregularity or fraud in publishing or conducting” the sale.
Sub-rule (2) of Order 21 Rule 90 however places a further condition on the
setting aside of a court sale in the following language:

“90. (2) No sale shall be set aside on the ground of irregularity or fraud
in publishing or conducting it unless, upon the facts proved, the court is
satisfied that the applicant has sustained substantial injury by reason of
such irregularity or fraud.”

13. Therefore before the sale can be set aside merely establishing a
material irregularity or fraud will not do. The applicant must go further
and establish to the satisfaction of the court that the material
irregularity or fraud has resulted in substantial injury to the applicant.
Conversely even if the applicant has suffered substantial injury by reason
of the sale, this would not be sufficient to set the sale aside unless
substantial injury has been occasioned by a material irregularity or fraud
in publishing or conducting the sale. (See Dhirendra Nath Gorai v. Sudhir
Chandra Ghosh;(1964) 6 SCR 1001, Jaswantlal Natvarlal Thakkar v. Sushilaben
Manilal Dangarwala, 1991 Supp(2) SCC 691 and Kadiyala Rama Rao v. Gutala
Kahna Rao,(2000) 3 SCC 87)

14. A charge of fraud or material irregularity under Order 21 Rule 90 must
be specifically made with sufficient particulars. Bald allegations would
not do. The facts must be established which could reasonably sustain such a
charge. In the case before us, no such particulars have been given by the
respondent of the alleged collusion between the other respondents and the
auction-purchaser. There is also no material irregularity in publishing or
conducting the sale. There was sufficient compliance with Order 21 Rule
67(1) read with Order 21 Rule 54(2). No doubt, the trial court has said
that the sale should be given wide publicity but that does not necessarily
mean by publication in the newspapers. The provisions of Order 21 Rule 67
clearly provide if the sale is to be advertised in the local newspaper,
there must be specific direction of the court to that effect. In the
absence of such direction, the proclamation of sale has to be made under
Order 21 Rule 67(1) “as nearly as may be, in the manner prescribed by Rule
54 sub-rule (2)”. Rule 54 sub-rule (2) provides for the method of
publication of notice and reads as follows:

“54. (2) The order shall be proclaimed at some place on or adjacent to such
property by beat of drum or other customary mode, and a copy of the order
shall be affixed on a conspicuous part of the property and then upon a
conspicuous part of the courthouse, and also, where the property is land
paying revenue to the Government, in the office of the Collector of the
district in which the land is situate and, where the property is land
situate in a village, also in the office of the Gram Panchayat, if any,
having jurisdiction over that village.”

15) After examining the facts of this case in the light of the law laid
down in the case of Saheb Khan (supra), we are of the considered opinion
that the reasoning and the conclusion arrived at by the executing Court
deserves to be restored as against that of the High Court in the impugned
order. In other words, no case was made out by the judgment debtor for
setting aside of the sale of the property in question on the ground of
committing any material irregularity or fraud in publishing or in
conducting the sale so as to enable the Court to invoke its powers under
Order 21 Rule 90 (2) of the Code.
16) It is noticed that respondent No. 1, in her application for setting
aside the sale, had mainly raised four objections. Firstly, clear 15 days’
notice was not given for sale of the properties as required under the
Rules. Secondly, the valuation of the property was not properly mentioned
in the concerned documents so as to enable the parties to know its proper
valuation prevailing on the date of sale. Thirdly, the market value of the
property on the date of auction was more than the price actually fetched in
the auction, and fourthly, no proper publication including beating of drum
was made before the date of auction due to which there was less
participation of the bidders in the auction sale.
17) The executing Court dealt with all the four objections with reference
to the record of the proceedings and found as a fact that none of the
objections had any merit. The High Court, however, found fault in the same
though not in all but essentially in the matter relating to giving of clear
15 days’ notice and the manner in which it was issued and finding merit in
the objection, set aside the sale on imposing certain conditions enumerated
above.
18) In our considered opinion, as mentioned above, the executing Court
was justified in overruling the objections and we concur with the reasoning
and the conclusion of the executing Court.
19) We also find on facts that firstly, the proper publicity was given
for auction sale in papers so also by beat of drums pursuant to which as
many as seven bidders including the appellant herein participated in the
auction sale. Had there been no publicity, it would not have been possible
for seven persons to participate in the auction proceedings.
20) Secondly, the details of the valuation of the property were duly
mentioned, namely, decree holder’s valuation at Rs.2,75,000/- likewise,
Amin’s valuation at Rs.4 lacs whereas the property was sold in auction for
Rs.7,50,000/-. In this view of the matter, it could not be said that the
bidders did not know the valuation or/and that it was not mentioned in the
auction papers.
21) Thirdly, judgment debtor did not adduce any evidence nor brought any
bidder to purchase the property for a higher price than the purchase bid
(Rs.7,50,000/-) except to say in the application that value of the property
was between Rs.12 lakhs to Rs.14 lakhs. In our view, this objection has no
substance for want of any evidence.
22) Fourthly, there was adequate publicity given with the aid of beat of
drums in the locality. It was proved with the record of the executing
Court as was rightly held by the executing Court and lastly, in our view, a
clear 15 days’ notice was given for auction sale fixed for 17.11.1999 when
counted from 05.10.1999. In other words, 15 days have to be counted from
05.10.1999 because it is on this date the order was issued as contemplated
under Order 21 Rule 64 for proclamation of sale fixing the date of sale as
17.11.1999.
23) The executing Court, therefore, substantially and in letter and
spirit followed the procedure prescribed under Order 21 Rules 64 and 66 of
the Code while conducting the sale of the property in question.
24) The law on the question involved herein is clear. It is not the
material irregularity that alone is sufficient for setting aside of the
sale. The judgment debtor has to go further and establish to the
satisfaction of the Court that the material irregularity or fraud, as the
case may be, has resulted in causing substantial injury to the judgment-
debtor in conducting the sale. It is only then the sale so conducted could
be set aside under Order 21 Rule 90(2) of the Code. Such is not the case
here.
25) In the light of aforesaid discussion, we are of the considered view
that none of the objections raised by respondent No.1 had any merit and nor
any of the objections constituted any kind of material irregularities so as
to enable the Court to set aside the sale under Order 21 Rule 90(2) of the
Code. So far as the plea of fraud was concerned, admittedly, it was not
raised and, therefore, it did not fall for consideration.
26) Learned Counsel for the respondent has placed reliance on the
decisions in Gajadhar Prasad & Ors. Vs. Babu Bhakta Ratan & Ors., (1973) 2
SCC 629, Ambati Narasayya vs. M. Subba Rao & Anr., 1989 Supl(2) SCC 693,
Desh Bandhu Gupta vs. N.L. Anand & Rajinder Singh, (1994) 1 SCC 131 and
Saheb Khan vs. Mohd. Yousufuddin & Ors.,(2006) 4 SCC 476. We have gone
through these cases and find that all are distinguishable on facts. When we
have held on facts that there are no material irregularities noticed in the
case and that there was compliance of the provisions of Order 21 Rules 64
to 68 then, in our view, the law laid down in these decisions are of no
help to the respondent-judgment debtor.
27) In view of foregoing discussion, we are unable to agree with the
reasoning and the conclusion arrived at by the High Court which is
factually and legally unsustainable. Its view is not in conformity with
the law laid down in the case of Saheb Khan (supra).
28) As a result, the appeal succeeds and is allowed. Impugned order is
set aside and that of the executing Court restored.

……………………………………..J.
[R.K. AGRAWAL]
……………………………………….J.
[ABHAY MANOHAR SAPRE]
New Delhi;
May 02, 2017
———————–
17

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whether the award should be held to have not been validly made and on that ground the proceedings should be held to have lapsed.= It is seen from the above resume of the proceedings that the appellants were paid compensation and possession was duly taken. The appellants also preferred reference on which higher compensation was awarded and matter attained finality upto this Court. The appellants thereafter filed a writ petition challenging the acquisition proceedings which was held to barred by delay and latches against which SLP was dismissed by this Court. Of course, an observation was made that the appellants could prefer appropriate proceedings based on their grievance under the 2013 Act.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3790 OF 2017

Jasveer Singh and Anr. …APPELLANT(S)

VERSUS

State of U.P. and Ors. …RESPONDENT(S)

With

CIVIL APPEAL NO.3787 OF 2017
RAJINDER Singh …APPELLANT(S)

VERSUS

State of U.P. and Ors. …RESPONDENT(S)
WITH

CIVIL APPEAL NO.3786 OF 2017
BHAG Singh …APPELLANT(S)

VERSUS

State of U.P. and Ors. …RESPONDENT(S)
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. These appeals have been preferred against the Order of the High Court
of Allahabad in Writ C. No. 59918 of 2014 rejecting the prayer of the
appellants for quashing the land acquisition proceedings initiated vide
notification dated 18th August 1981 under Sections 4 and 6 of the Land
Acquisition Act, 1894. The acquisition was “for the construction of New
Broad Gauge Railway Line between Rampur and Haldwani” in the District of
Rampur. Urgency clause was invoked. Possession of the land was taken on
19th September, 1986. The award was made on 22nd September, 1986. The
appellants preferred reference under Section 18 for enhancement of
compensation which was decided vide Award dated 7th December, 1988 by the
District Judge, Rampur. First appeals against the said award were decided
by the High Court on 29th January, 2004. This Court vide order dated 12th
September, 2005 in Civil Appeal Nos. 5714-15 of 2005 remanded the matters
to the High Court having regard to the grievance of the appellant against
denial of statutory benefits.
2. On 19th December, 2005 the appellants filed a writ petition before
the High Court seeking quashing of the acquisition proceedings which was
decided by the High Court on 3rd December, 2010 directing redetermination
of compensation. The said order was set aside by this Court on 16th
October, 2012 in Civil Appeal No.7535 of 2012. It was observed that :
“After considering the pros and cons, without entering into serious
controversies and making any comment on the merit of the case, we are of
the considered opinion that in view of the judgment and order of this Court
dated 26th November, 2010, which was passed in presence of the counsel for
both the parties, the High Court ought not to have heard the matter at all.
Thus, the judgment and order impugned before us has lost its sanctity.
Therefore, the same is hereby set aside.
However, in order to meet the ends of justice, we remand the case to the
High Court to hear the writ petition afresh expeditiously preferably within
a period of six months from the date of production of the certified copy of
the order before the Hon’ble Chief Justice. The matter may be assigned to
any particular Bench by the Hon’ble Chief Justice for final disposal. The
parties shall be at liberty to raise all factual and legal issues involved
in the case. The High Court is requested to deal with the relevant issues
in detail.
More so, if the respondents are so aggrieved regarding withdrawal of their
appeals, which had been remanded by this Court for determining the
entitlement of interest under Section 23-(1A) of the Land Acquisition Act,
1984 and an application is made by the respondent to revive the same, the
High Court may consider and decide the said application in accordance with
Law. All the matters shall be heard simultaneously by the same Bench if
the appeals are restored. “

3. Thereafter, the High Court considered the contention of the
appellants that the award in respect of compensation was no award in the
eye of law and though the possession was taken long back and railway line
had been laid out, the acquisition proceedings were liable to be set aside
and compensation was liable to be awarded at present market rate. The High
Court rejected the said plea vide judgment dated 30th May, 2014 in Writ-C
No.77449 of 2005. It was observed that objection of the appellants
against the award had already been considered and remand by the Supreme
Court on 12th September, 2005 was only in respect of statutory benefits.
For the first time plea was sought to be raised in the writ petition
against validity of acquisition which was impermissible in view of law laid
down by this Court in Aflatoon versus Lt. Governor of Delhi[1], Swaika
Properties Pvt. Ltd. versus State of Rajasthan[2], Sawaran Lata versus
State of Haryana[3] and Banda Development Authority, Banda versus Moti Lal
Agarwal[4]. Judgment of this Court in Royal Orchid Hotel versus G.
Tayarama Reddy[5] was distinguished as that case related to fraudulent
exercise of power of eminent domain. The High Court concluded :
“ 45. Taking into consideration the entire facts and circumstances of the
case, we are of the view that the writ petition is highly barred by latches
and deserves to be dismissed on the ground of latches alone.
46. As has been observed above, the petitioners’ main grievance is for
enhancement of compensation, for which the petitioner has already filed
First Appeal No.880 of 1993 and First Appeal No.401 of 1998 which appeals
are being allowed by order of the date, we see no reason to entertain the
writ petition.
47. Although, various submissions on merits challenging the entire
acquisition proceedings have been raised by learned counsel for the
petitioners, but we having taken the view that the writ petition is highly
barred by latches, we do not find it necessary to enter into the
submissions raised by learned counsel for the petitioners on merits. ”

4. The appellant thereafter preferred S.L.P. (Civil) No. 27109 of 2014
which was dismissed. However, it was observed that appellants are at
liberty to work out their grievance based on the new Land Acquisition Act
(2013) by preferring appropriate proceedings. The appellant thereafter
filed W.P. No.77449 of 2005 from which these appeals have arisen.
5. The High Court dismissed the writ petition with the following
observations:
“ From the facts as noticed herein above, we are of the considered opinion
that not only the Award had been made, the petitioners had also filed a
Reference Application which was rejected and against the Reference Order,
they filed First Appeal, referred to above, which has also been dismissed.
There is substance in the allegations made. ”

6. We have heard learned counsel for the parties.
7. Learned counsel for the appellants submitted that in the present
case the award should be held to have not been validly made and on that
ground the proceedings should be held to have lapsed.
8. We are unable to accept the above submission. It is seen from the
above resume of the proceedings that the appellants were paid compensation
and possession was duly taken. The appellants also preferred reference on
which higher compensation was awarded and matter attained finality upto
this Court. The appellants thereafter filed a writ petition challenging
the acquisition proceedings which was held to barred by delay and latches
against which SLP was dismissed by this Court. Of course, an observation
was made that the appellants could prefer appropriate proceedings based on
their grievance under the 2013 Act.
9. The grievance of the appellants against acquisition proceedings on
the ground that the award was not a valid award was rejected and SLP was
dismissed by this Court but permitting a fresh challenge. The fact remains
that the challenge of the appellants is barred by laches and the said
finding does not suffer from any infirmity. Even if the appellants were
permitted to lay a fresh challenge, they are required to overcome this
legal bar which in our view the appellants have not been able to overcome.
10. We, thus, do not find any error in the view taken by the High Court.
The appeals are dismissed.
………………………………………………..J.
[ADARSH KUMAR GOEL ]

………………………………………………..J.
[ Rohinton Fali Nariman ]

NEW DELHI
May 01, 2017

———————–
[1]
[2] (1975) 4 SCC 285
[3]
[4] (2008) 4 SCC 695
[5]
[6] (2010) 4 SCC 532
[7]
[8] (2011) 5 SCC 394
[9]
[10] (2011) 10 SCC 608

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