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sub section ( 2 ) of section 52a. the learned senior counsel submitted that only the samples drawn under sub section ( 2 ) of criminal appeal no. 451 of 2011 page 4 of 16 section 52a and certified by the magistrate become primary evidence in respect of the offence. he relied upon the decision of this court in the case of union of india v. mohanlal & anr. 2 he, therefore, submitted that the prosecution is vitiated as the work of drawing the sample was done by pw 2 without following sub section ( 2 ) of section 52a. lastly, the learned senior counsel submitted that the statements of the two independent witnesses could not have been read in evidence as the prosecution failed to prove that the presence of the witnesses could not be procured. he submitted that in the circumstances, the evidence of pw 2 should have been subjected to a closer scrutiny. he submitted that there is no corroboration to the evidence of pw 2 except for the alleged confessional statement which was not admissible in evidence. criminal appeal no. 1185 of 20115. the learned counsel appearing for the appellant in criminal appeal no. 1185 of 2011, while adopting most of the submissions made by the learned senior counsel in the companion appeal, submitted that the appellant had already undergone a sentence of about nine years. he submitted that the confessional statement of accused no. 1 was not voluntary as is clear from the report under section 57. moreover, in the search, no incriminating material could be found against 2 ( 2016 ) 3 scc 379 criminal appeal no. 451 of 2011 page 5 of 16 accused no. 1 as it was accused no. 4 who had booked the room in his name from which, the contraband was allegedly recovered. he would, therefore, submit that the courts ought to have acquitted accused no. 1. 6. the learned counsel submitted that adverse inference will have to be drawn against the prosecution for not examining the independent witnesses though they were available. he submitted that the accused have lost the opportunity to cross examine the independent witnesses, thereby, causing prejudice. 7. the learned counsel appearing for the appellant further submitted that as per the prosecution s case, the contraband was recovered from room no. 303 in hotel suriya, periamet, chennai where accused no. 4 was staying. according to the prosecution s case, accused no. 1 ( appellant ) was staying in room no. 213 of the himalaya lodge, triplicane, chennai. he pointed out that according to

the prosecution s case, information was received that accused no. 1 was likely to receive 5 kilograms of heroin from accused nos. 2 and 3. he submitted that the prosecution has not proved that anyone has seen accused nos. 2 and 3 carrying contraband to the room occupied by accused no. 4. it is not the prosecution s case that it was accused no. 1 who brought the contraband to room no. 303. the contraband has been seized from the room occupied by accused no. 4 who has been convicted only for the offences punishable under criminal appeal no. 451 of 2011 page 6 of 16 section 8 ( c ) read with section 30 of the ndps act. he submitted that even assuming that the accused no. 1 showed contraband kept in a bag in the room occupied by the accused no. 4, it cannot be inferred that he was in actual or constructive possession of or was dealing with the contraband. the learned counsel submitted that the entire case of the prosecution is suspicious and possibility of the prosecution framing accused no. 1, cannot be ruled out. submissions of ncb8. the learned additional solicitor general ( a. s. g. ) appearing for the respondent supported the impugned judgment and pointed out that even if the independent witnesses to the seizure were not examined, the offence can always be proved by the official witnesses. he submitted that the courts below have believed the testimony of the official witnesses namely, pw 2 and pw 4 to pw 7. he submitted that the contraband was found in the hotel room where all four accused persons were present. he submitted that even if confessional statements are kept out of consideration, the conviction can be sustained on the basis of the evidence of the official witnesses and in particular, pw 2. the evidence of pw 2 has not been shaken in the cross examination. the learned a. s. g. would urge that no criminal appeal no. 451 of 2011 page 7 of 16 interference is called for with the concurrent findings of the courts below. our view9. the prosecution s case is that pw 2, who was the intelligence officer of the ncb, received information on 16 th may 2002 at about 10 : 45 a. m that accused no. 1 who was indulging in drug trafficking, has come to chennai and was staying in room no. 213 of the himalaya lodge, triplicane, chennai. he had come there to receive 5 kilograms of heroin

from accused nos. 2 and 3, who were staying in room no. 211 of hotel blue star international, chennai. the information received was that the accused nos. 1, 2 and 3 had planned to deliver the contraband to accused no. 4 who was residing in room no. 303 of hotel suriya, periamet, chennai. the job of accused no. 4 was to transfer it to tuticorin and from there, to sri lanka. pw 2 raided room no. 303 occupied by accused no. 4 along with other officers and two independent witnesses namely, devendran and prabhu. according to the prosecution s case, after the door was knocked on, it was opened and it was found that all the four accused were present there. when pw 2 questioned whether they were in possession of any narcotic drug, the first accused took out a blue coloured rexine bag which, according to the prosecution, contained packets of a total of 5. 067 kilograms of heroin. pw 2 seized the heroine and took two samples from each packet by criminal appeal no. 451 of 2011 page 8 of 16 placing them in two plastic covers separately. the plastic packets were sealed and the remaining contraband was also sealed. according to the prosecution s case, all the accused made confessional statements under section 67 of the ndps act. 10. though the two independent witnesses were not examined before the court, their statements were marked as exhibits p 19 and p 71. a perusal of the impugned judgment of the high court shows that it was held that the conditions prescribed by section 53a of the ndps act were not fulfilled and therefore, these two statements were inadmissible. the high court believed the testimony of pw 2 and pw 4 to pw 7 and held that the confessional statements of the accused could be taken as corroboration for the evidence of official witnesses. 11. paragraphs 158. 1 and 158. 2 of the majority view in tofan singh s case1, read thus : criminal appeal no. 451 of 2011 page 9 of 16 158. 2. that a statement recorded under section 67 of the ndps act cannot be used as a confessional statement in the trial of an offence under the ndps act. ( emphasis added ) 12. admittedly, the confessional statements were made by the accused to an officer empowered under section 53 of the ndps act and hence

, in view of the bar of section 25 of the evidence act, the confessional statements will have to be kept out of consideration. 13. as regards the statements of the official witnesses at exhibits p 19 and p 71, the special court relied upon the same. the high court considered the provisions of section 53a, which reads thus : 14. a finding was recorded by the high court that the prosecution has not proved that the witnesses are dead or cannot be found or are incapable of giving evidence or kept out of the way of the accused or their presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable. these findings are based on the perusal of the entire record. there is no explanation offered by the prosecution about their failure to examine these two independent material witnesses. criminal appeal no. 451 of 2011 page 11 of 16 hence, the statements of both witnesses are not admissible in evidence. 15. admittedly, pw 2 drew two samples from each of the packets of the contraband found in the hotel room and kept them in two separate plastic covers. these covers were sealed and the remaining contraband was also sealed. thus, the prosecution claims that the samples were prepared even before the packets were sent to the station house officer. the submission of the learned senior counsel appearing for the appellant in criminal appeal 451 of 2011 was that a grave suspicion is created about the prosecution s case as this action by the pw 2, was contrary to section 52 a of ndps act. 16. in paragraphs 15 to 17 of the mohanlal s case2, it was held thus : 17. the question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the magistrate does not in the above scheme of things arise. this is so especially when according to section 52 a ( 4 ) of the act, samples drawn and certified by the magistrate in compliance with sub sections ( 2 ) and ( 3 ) of section 52 a above constitute primary evidence for the purpose of the trial. suffice it to say that there is no provision in the act criminal appeal no. 451 of 2011 page 13 of 16 that mandates taking of samples at the time of seizure. that is perhaps why none of the states claim to be taking samples at the time of seizure. ( emphasis added ) thus, the act of pw 2 of drawing samples from all the packets at the time of seizure is not in conformity with what is

held by this court in the case of mohanlal2. this creates a serious doubt about the prosecution s case that the substance recovered was contraband. 17. even according to the prosecution s case, as can be seen from the version of pw 2, accused no. 1 ( appellant in criminal appeal no. 1185 of 2011 ) was staying in room no. 213 of himalaya lodge, triplicane, chennai. he was to receive 5 kilograms of heroin from accused no. 2 and accused no. 3 ( appellant in criminal appeal no. 451 of 2011 ). accused nos. 2 and 3, according to the case of the prosecution, were staying in room no. 211 of hotel blue star international, chennai. it was accused no. 4 who was staying in room no. 303 of hotel suriya, periamet, chennai where pw 2 and other members of her party entered. the case of the prosecution is that after pw 2 and others entered the room, they called upon all the four accused who were present there to disclose whether they were in possession of the contraband. the prosecution s case is that accused no. 1 showed a blue coloured bag from which the criminal appeal no. 451 of 2011 page 14 of 16 recovery of about 5 kilograms of heroin was made. it is not the case of the prosecution that accused no. 1 was carrying that bag with him or that it was in his custody. the bag was in the room occupied by accused no. 4. thus, it cannot be said that the contraband was found in the custody of accused no. 1. at the highest, it was found in the room occupied by accused no. 4. we may note here that accused no. 4 has been convicted by the high court only for the offence punishable under section 30 of the ndps act which is for the offence of making preparation to do or omitting to do anything which constitutes an offence punishable under the provisions of sections 19, 24 and 27a. the prosecution has not produced any evidence to show that the contraband was brought to the room of the accused no. 4 by the other three accused persons or anyone of them. it is not the case that the room of accused no. 4 was in possession of accused nos. 1 to 3 who were staying in different hotels. 18. therefore, in our view, the case of the prosecution is not free from suspicion. the prosecution has not proved beyond

a reasonable doubt that the appellants in these two appeals were in possession of the contraband or that they brought the contraband to the hotel room of the accused no. 4. criminal appeal no. 451 of 2011 page 15 of 1619. in the circumstances, we cannot sustain the conviction of the appellants in these two appeals. accordingly, the impugned judgments are set aside and the appellants are acquitted of the offences alleged against them. appeals are accordingly allowed.... j. ( abhay s. oka )... j. ( rajesh bindal ) new delhi ; april 26, 2023. criminal appeal no. 451 of 2011 page 16 of 16

sudhanshu dhulia, j. 1. this appeal arises out of a divorce proceeding initiated by the appellant under section 13 of the hindu marriage act, 1955, ( hereinafter referred to as the act ), in the court of additional district judge ( north ), tis hazari courts, delhi. his suit was decreed and the marriage was dissolved by the order signature not verified of the additional district judge ( north ) dated 02. 05. 2009. the digitally signed by nirmala negi date : 2023. 04. 26 17 : 44 : 57 ist reason : respondent / wife, then, filed an appeal before the delhi high court which has set aside the order of the trial court and page 1 of 17 dismissed the petition of the husband. aggrieved by the said order, the appellant / husband has filed a special leave petition before this court, in which leave was granted on 26. 02. 2013. 2. the appellant and the respondent were married under hindu rituals and customs in delhi, on 16. 04. 1994. regrettably, it did not take long for the marital discord to set in their marital life. the appellant s case is that his wife was not happy in their small dwelling, and used offensive, even abusive language against him. it has also been alleged that in september, 1994, she got her pregnancy terminated, without any prior intimation to her husband ( this allegation was denied by the wife and could never be proved against her ). it was in september 1994, again when she left her matrimonial home, but due to the efforts made by the well wishers and relatives, they started living together from march 1995 onwards. this again did not last long, as on 16. 02. 1998 she left her matrimonial house, and lodged a complaint with the local police on 16 / 17. 02. 1998. in march 1998, she agreed to page 2 of 17 join her husband, on the condition that the appellant would take another accommodation and consequently in april, 1998 another house was taken on rent, and the two started living together in the new house. but then, on 24. 08. 1998, the appellant alleges that he was beaten by his wife and her brother. on 29. 11. 1998, he was kept out of his own house for the entire night. on 17. 12. 1998 she left her matrimonial house and lodged an fir against the appellant and his brother, under section 498a

/ 406 of the indian penal code, at anand parbat police station, new delhi. the appellant and his brother were arrested the same day, while they were attending a marriage ceremony, and this was done in the presence of 15 to 20 of his friends. later the two were released on bail, though the wife persisted with the matter and even moved an application for cancellation of their bail. the wife then filed a complaint under sections 323 and 324 read with section 34 ipc against the appellant / husband and his family members, however, they were subsequently discharged from the case. the respondent also initiated proceedings against appellant under section 107 read with section 150 of page 3 of 17 the code of criminal procedure. she then filed a petition, under section 18 of hindu adoption and maintenance act, 1956, for her maintenance. 3. left by his wife and burdened with multiple litigations slapped on him, the appellant took the decision to end the matrimonial relations. he thus moved his petition for dissolution of marriage under section 13 ( 1 ) ( ia ) & ( ib ) of hindu marriage act, 1955, before the additional district judge, north delhi on 20. 09. 2002, inter alia, on the facts, as narrated in the preceding paragraph. 4. the respondent denies that she ever deserted her husband or inflicted any cruelty on him. her counsel would submit that she only took recourse to legal avenues available to her under the law. she alleges that her ornaments which were her stridhan, were taken away and were never returned, and how she was forced to file a case against her husband under sections 498a & 406 of the indian penal code ( ipc ). it was also her case that she had made every possible effort for reconciliation, but due to the non cooperation of the appellant, page 4 of 17 all efforts towards mediation and settlement resulted in failure. she has denied that she had terminated her pregnancy. 5. the family court on 15. 10. 2003 framed issues on cruelty and desertion. the trial court gave the findings on cruelty as well as desertion in favour of the husband and a decree for the dissolution of marriage was passed. 6. the high court in appeal, came to the conclusion that the mere fact that the respondent did not allow her husband to enter his house on 29. 11. 1998, would not prove that it was her intention to bring cohabitation permanently to an end and therefore the ground of dissolution of marriage on desert

##ion were not made out. as far as filing of various complaints under sections 323, 324 and 498a ipc are concerned, the high court was of the view that mere filing of such complaints, or their result in acquittal would not amount to cruelty, as the wife was only exercising her options available to her under the law. moreover, what has to be seen are also the circumstances under which these complaints were filed. page 5 of 177. we have heard mr. s. k. rungta, learned senior advocate for the appellant / husband and mr. s. k. bhalla learned advocate for the respondent / wife at length and perused the material on record. 8. this case has travelled from the family court to the high court and now finally to this court. the decision of delhi high court is of 08. 04. 2011, which goes back to twelve years. we have to take into consideration all the facts which are before us as of now. to our mind the facts which we must take into account are : ( i ) that the couple is now living separately for the last almost 25 years, and all these years there has been no cohabitation between them. ( ii ) that there is no child out of the wedlock, and the couple lived together as husband and wife for barely 4 years. ( iii ) that repeated efforts by the courts for reconciliation or settlement have resulted in failure. 9. at the very initial stage the trial court had sent the parties for mediation, which did not succeed. this court had also sent the two for mediation, which failed. the case was again sent for settlement in the lok adalat but with no results. page 6 of 17 on 11. 04. 2015, this court again requested the parties to explore possibilities of living together, but nothing materialised. then on 09. 05. 2015, this court asked the parties to come to some mutual settlement, but in vain. in other words, every single effort of the court and the mediators, towards a compromise or settlement has led to a blind alley. even now, before giving a formal hearing to the parties we tried to gather the current situation from the parties. the appellant has unequivocally stated that there is no room for any compromise or settlement and he requests that a decision be made in this case on its merits, whereas the counsel for the respondent apprised this court that the respondent would like to save her marriage and he prays for mediation once again. he would also submit that no ground

for divorce has been made out and the well considered decision of delhi high court should be upheld. 10. the husband and wife, who are before us have been living separately since the last 25 years. there is no child out of the wedlock. there are bitter allegations of cruelty and page 7 of 17 desertion from both the sides and multiple litigations between the two in the last more than 25 years. this embittered relationship between the appellant and the respondent which has not witnessed any moment of peace for the last 25 years is a marital relationship only on paper. the fact is that this relationship has broken down irretrievably long back. 11. the high court has taken a view that mere filing of criminal cases against the appellant husband would not constitute cruelty. all the same, the number of criminal cases filed by the respondent wife against the appellant husband are far too many which have been discussed above. all these cases have either resulted in discharge or acquittal of the appellant husband, if not before the pronouncement of the judgment of the delhi high court but definitely after the pronouncement of the judgment of the delhi high court. moreover, a three judge bench of this court in naveen kohli v. neelu kohli1 held that repeatedly filing of criminal cases by one party against the other in a matrimonial matter would 1 ( 2006 ) 4 scc 558 page 8 of 17 amount to cruelty and the same was reiterated by a division bench of this court in k. srinivas rao v. d. a. deepa2. 12. other aspect which we must consider is the fact that for the last 25 years the appellant and respondent, are living separately, and have not cohabitated. there is absolutely no scope of reconciliation between the parties. there is in fact no bond between the two and as the law commission in its 71st report said about such a marriage, which is a marriage which has de facto broken down, and only needs a de jure recognition by the law. the same was reiterated by the law commission in its 217th report. 13. under similar circumstances, this court in r. srinivas kumar v. r. shametha3, munish kakkar v. nidhi kakkar4 and neha tyagi v. lieutenant colonel deepak tyagi5 has held that an irretrievable marriage is a marriage where husband and wife have been living separately for a 2 ( 2013 ) 5 scc 226 3 ( 2019 ) 9 scc 409 4 (

2020 ) 14 scc 657 5 ( 2022 ) 3 scc 86 page 9 of 17 considerable period and there is absolutely no chance of their living together again. in all the above cited three cases, this court in exercise of its power under article 142 of the constitution of india has dissolved the marriage on the ground of irretrievable breakdown as a ground, which otherwise does not exist under the hindu marriage act. 14. in naveen kohli ( supra ), a strong recommendation has been made by this court to the union of india to consider adding irretrievable breakdown down of a marriage as a ground for divorce under the hindu marriage act. 15. the multiple court battles between them and the repeated failures in mediation and conciliation is at least testimony of this fact that no bond now survive between the couple, it is indeed a marriage which has broken down irretrievably. 16. matrimonial cases before the courts pose a different challenge, quite unlike any other, as we are dealing with human relationships with its bundle of emotions, with all its page 10 of 17 faults and frailties. it is not possible in every case to pin point to an act of cruelty or blameworthy conduct of the spouse. the nature of relationship, the general behaviour of the parties towards each other, or long separation between the two are relevant factors which a court must take into consideration. in samar ghosh v. jaya ghosh6 a three judge bench of this court had dealt in detail as to what would constitute cruelty under section 13 ( 1 ) ( ia ) of the act. an important guideline in the above decision is on the approach of a court in determining cruelty. what has to be examined here is the entire matrimonial relationship, as cruelty may not be in a violent act or acts but in a given case has to be gathered from injurious reproaches, complaints, accusations, taunts, etc. the court relied on the definition of cruelty in matrimonial relationships in halsbury s laws of england ( vol 13, 4th edn, para 1269, pg 602 ) which must be reproduced here : irretrievable breakdown of a marriage may not be a ground for dissolution of marriage, under the hindu marriage act, but cruelty is. a marriage can be dissolved by a decree of divorce, inter alia, on the ground when the other party has, after the solemnization of the marriage treated the petitioner with cruelty 7. in our considered opinion, a marital

relationship which has only become more bitter and acrimonious over the years, does nothing but inflicts cruelty on both the sides. to keep the fa ade of this broken marriage alive would be doing injustice to both the parties. a marriage which has broken down irretrievably, in our opinion spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. it is therefore a ground for dissolution of marriage under section 13 ( 1 ) ( ia ) of the act. 17. cruelty has not been defined under the act. all the same, the context where it has been used, which is as a ground for dissolution of a marriage would show that it has to 7 section 13 ( 1 ) ( ia ) of the hindu marriage act, 1955 page 13 of 17 be seen as a human conduct and behavior in a matrimonial relationship. while dealing in the case of samar ghosh ( supra ) this court opined that cruelty can be physical as well as mental : 46 if it is physical, it is a question of fact and degree. if it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. cruelty can be even unintentional : the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. intention is not a necessary element in cruelty. the relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill treatment. this court though did ultimately give certain illustrations of mental cruelty. some of these are as follows : ( i ) on consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. ( xii ) unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. ( xiii ) unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. ( xiv ) where there has been

a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. the marriage becomes a fiction though supported by a legal tie. by refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage ; on the contrary, it shows scant regard for the feelings and emotions of the parties. in such like situations, it may lead to mental cruelty. ( emphasis supplied ) 18. we have a married couple before us who have barely stayed together as a couple for four years and who have now been living separately for the last 25 years. there is no child out of the wedlock. the matrimonial bond is completely broken and is beyond repair. we have no doubt that this relationship must end as its continuation is causing cruelty on both the sides. the long separation and absence of cohabitation and the complete breakdown of all meaningful page 15 of 17 bonds and the existing bitterness between the two, has to be read as cruelty under section 13 ( 1 ) ( ia ) of the 1955 act. we therefore hold that in a given case, such as the one at hand, where the marital relationship has broken down irretrievably, where there is a long separation and absence of cohabitation ( as in the present case for the last 25 years ), with multiple court cases between the parties ; then continuation of such a marriage would only mean giving sanction to cruelty which each is inflicting on the other. we are also conscious of the fact that a dissolution of this marriage would affect only the two parties as there is no child out of the wedlock. 19. under these circumstances, we uphold the order of the trial court, though for different grounds given by us in our order, and we set aside the order of the high court and grant a decree of divorce to the appellant / husband. their marriage shall stand dissolved. 20. however, considering the fact that the appellant / husband is an employee in life insurance corporation, as we have been informed at the bar and his page 16 of 17 present salary is more than rs. 1, 00, 000 / ( one lakh rupees ) per month, we deem it fit and proper that he gives an amount of rs. 30, 00, 000 / ( thirty lakh rupees ) to the respondent / wife as permanent alimony. this amount of rs. 30, 00, 000 / ( thirty lakh rupees ) shall be deposited in the name of the respondent,

within a period of four weeks from today with the registry of this court. the decree of divorce shall be made effective only from the date of such a deposit. on the event of such deposit, the registry after verifying the credentials of the respondent / wife shall disburse the amount to the respondent / wife without further reference to this court. with the aforesaid directions, the appeal stands allowed..... j. [ sudhanshu dhulia ].... j. [ j. b. pardiwala ] new delhi. april 26, 2023. page 17 of 17

sanjay kumar, j1. convicted and sentenced for the dastardly and most depraved of offences the rape of his own 9 - year - old daughter, the appellant is before this court. 2. by judgment dated 18. 02. 2013 in sessions case no. 01 of 2013, the learned additional sessions judge ( special fast track court ), dwarka courts, new delhi, held the appellant guilty under sections 376, 377 and 506 ipc. by order of sentence dated 23. 02. 2013, the appellant was imposed with imprisonment for life under section 376 ipc and payment of fine of 25, 000 / - ; imprisonment for life under section 377 ipc and payment of fine of 25, 000 / - ; and rigorous imprisonment for 2 years under section 506 ipc along with payment of fine of 10, 000 / -. default in payment of fines entailed further periods of imprisonment. in addition thereto, the learned additional sessions judge directed that the appellant should not be given any clemency by the state before he spent at least 20 years in jail. in appeal, a division bench of the delhi high court upheld the appellant s conviction and sentence, vide judgment dated 01. 09. 2017 in criminal appeal no. 1509 of 2014. hence, this appeal by special leave under article 136 of the constitution. 3. by order dated 19. 03. 2018, this court issued notice to the state only on the question of sentence. 4. heard mr. sudhir naagar, learned counsel for the appellant ; and ms. sonia mathur, learned senior counsel, appearing for the state. 35. as the scope of this appeal has been restricted to the sentence imposed upon the appellant, we need not dilate on or deal with the issues raised vis - - vis the merits of his conviction for the offences under sections 376, 377 and 506 ipc. 6. section 376 ( 2 ) ipc, prior to its amendment with retrospective effect from 03. 02. 2013 by the criminal law ( amendment ) act, 2013, consisted of clauses ( a ) to ( g ). section 376 ( 2 ) ( f ), as it stood then, provided that whoever commits rape on a woman when she is under 12 years of age shall be punished with rigorous imprisonment for a term which shall not be less than 10 years but which may be for life and shall also be liable to fine. section 377 ipc states that whoever voluntarily has carnal intercourse against the order of nature with any

man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine. it was in exercise of power under sections 376 ( 2 ) ( f ) and 377 ipc that the learned additional sessions judge sentenced the appellant to life imprisonment, as the victim was merely 9 years of age and was also subjected to carnal intercourse against the order of nature. he, however, added the rider that the appellant should not be given clemency by the 4 state until he spent at least 20 years in jail. in effect, the appellant was sentenced to life imprisonment of a minimum term of 20 years. 7. imprisonment for life, in terms of section 53 ipc read with section 45 ipc, means imprisonment for the rest of the life of the prisoner, subject to the right to claim remission, etc., as provided under articles 72 and 161 of the constitution and under section 432 cr. p. c. in gopal vinayak godse vs. state of maharashtra 1, this court held that a sentence of imprisonment for life must, prima facie, be treated as imprisonment for the whole of the remaining period of the convicted person s natural life. in maru ram vs. union of india 2, a constitution bench endorsed this view and affirmed that a life sentence is nothing less than life - long imprisonment and would last until the last breath. again, in union of india vs. v. sriharan alias murugan and others 3, another constitution bench reiterated that imprisonment for life means imprisonment for the rest of the life of the convict. 8. however, in actual practice, one finds that a sentence of life imprisonment works out only to a term of 14 years, in terms of section 433 1 air 1961 sc 600 2 ( 1981 ) 1 scc 107 3 ( 2016 ) 7 scc 1 5 cr. p. c., and may prove to be grossly inadequate to the gravity of the offence for which the convict had been so sentenced. in swamy shraddananda vs. state of karnataka4, this court noted that the days of remission earned by a prisoner are added to the period of his actual imprisonment to make up the term of the sentence and the question that then arises is how such remission can be applied to life imprisonment, as the way in which remission is allowed can only apply to a fixed term of imprisonment and life imprisonment, being for the

rest of the life, is indeterminate by nature. it was observed that, in the states of karnataka and bihar, remission is granted to life convicts by deemed conversion of life imprisonment into a fixed term of 20 years by executive orders issued by the state government, flying in the face of a long line of decisions by this court, and no provision of law exists sanctioning such a course. it was pointed out that life convicts are granted remission and released from prison upon completing a 14 - year - term, without any sound legal basis, and one can safely assume that the position would be no better in other states. this court, therefore, took judicial notice of the fact that remission is allowed to life convicts in the most mechanical manner without any 4 ( 2008 ) 13 scc 767 6 sociological or psychiatric appraisal of the convict and without proper assessment as to the effect of an early release of a particular convict on the society. this court also noted that grant of remission is the rule and remission is denied, one may say, in the rarest of rare cases. faced with this conundrum, while commuting a death sentence to life imprisonment in that case, this court pondered over what should be done in such a situation. it was observed that, if the option is limited only to two punishments - one, being a sentence of life imprisonment, for all intents and purposes, of not more than 14 years, and the other, death, the court may feel tempted and find itself nudged into endorsing the death penalty and such a course would indeed be disastrous. it was therefore held that a far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the court, i. e., the vast hiatus between 14 years imprisonment and death, and substitute a death sentence by life imprisonment or by a term in excess of 14 years and, further, to direct that the convict must not be released from prison for the rest of his life or for the actual term as specified in the order, as the case may be. it was emphasized that the court would take recourse 7 to this expanded option primarily because, in the facts of the case, the sentence of 14 years imprisonment would amount to no punishment at all. 9. affirming the view taken in swamy shraddananda ( supra ), the majority opinion in v. sriharan ( supra )

observed that it could be said without any scope for controversy that, when by way of a judicial decision after a detailed analysis, having regard to the proportionality of the crime committed, it is decided that the offender deserves to be punished with the sentence of life imprisonment, i. e., till the end of his life or for a specific period of 20 years or 30 years or 40 years, such a conclusion should survive without any interruption. it was, therefore, held that in order to ensure that the punishment imposed, which is legally provided for in the penal code read along with criminal procedure code, operates without any interruption, the inherent power of the court concerned should empower the court, in public interest as well as in the interest of the society at large, to make it certain that such punishment will operate, as imposed, by stating that no remission or other liberal approach should come into effect to nullify such imposition. it was further observed that no prohibition is prescribed in the penal code, or for that matter any of the provisions where death penalty or life imprisonment is provided for, that 8 imprisonment cannot be imposed for a specific period within the said life span and, when life imprisonment means the whole life span of the person convicted, it cannot be said that the court which is empowered to impose the said punishment cannot specify the period up to which the said sentence of life should remain, befitting the nature of the crime committed. the majority opinion, therefore, concluded by stating that the ratio laid down in swamy shraddananda ( supra ), that a special category of sentence, instead of death, can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and that category can be put beyond application of remission, is well founded. it was further held that the power to impose a modified punishment within the punishment provided for in the penal code for such specified offences can only be exercised by the high court and in the event of further appeal, by the supreme court, and not by any other court in the country. 10. in the light of this settled legal position, it was clearly not within the domain of the learned additional sessions judge to impose a restriction that the term of the appellant s life imprisonment should be for at least 20 years and that he should not be given any clemency till then. such power could only be exercised by the high courts or by this court. 9 no doubt, the delhi high court confirmed the sentence passed by the learned additional sessions judge but mere

affirmation of the hollow exercise of a power, that was not conferred, by the learned additional sessions judge does not qualify as an independent exercise by the high court and would not suffice in terms of the legal requirement. it is only the high courts or this court that would have the power, upon proper application of mind, to take recourse to special category sentencing, depending upon the nature of the offence and its gravity. to that extent, the sentence imposed by the learned additional sessions judge was, therefore, without legal basis. 11. that being said, the fact still remains that the appellant was held guilty of the most heinous of offences, viz., the rape of his own little daughter. the trust and faith that a young girl would repose in her father and the sanctity of the very relationship were destroyed by his debauched and devastating acts. in such a situation, allowing him the freedom to seek liberal remissions, so as to cut short his life imprisonment, would be nothing short of a travesty of justice. significantly, section 376 ipc was amended with retrospective effect from 03. 02. 2013. the amended provision now reads very differently. section 376 ( 2 ) ipc has 10 been enlarged and presently comprises clauses ( a ) to ( n ). the new section 376 ( 2 ) ( f ) states that whoever, being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman, shall be punished with rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person s natural life, and shall also be liable to fine. further, section 376 ( 3 ) has been inserted in the statute book and it provides that whoever commits rape on a woman under 16 years of age shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person s natural life, and shall also be liable to fine. it may also be noted that the new sections 376a, 376d and 376e, brought into the statute book by the criminal law ( amendment ) act, 2013, and the new sections 376ab, 376da and 376db inserted therein by the criminal law ( amendment ) act, 2018, provide for the enlarged punishment of life imprisonment

for the remainder of the convict s natural life. 12. in the case on hand, the new sections 376 ( 2 ) ( f ) and 376 ( 3 ) ipc would have had application had the offence been committed after 03. 02. 2013. however, as it is an admitted fact that the child was raped by her father during the month of august, 2012, these amended provisions would have no role to play. article 20 ( 1 ) of the constitution of india would come to the undeserving rescue of the appellant, as it provides that no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. suffice it to state, at this stage, that this court is mindful of the fact that the lawmakers deemed it fit and appropriate to provide for more stringent punishment for the offence of rape in certain circumstances and made it clear that when imprisonment for life is imposed upon the perpetrator of the offence in those situations, such a perpetrator would be liable to remain in prison for the remainder of his natural life. 13. notably, the law laid down in swamy shraddananda ( supra ) and v. sriharan ( supra ), with regard to special category sentencing, was in the context of cases where death sentence had been imposed and the same was commuted to imprisonment for life. the question would then arise as to whether the power of the high courts and this court to impose 12 a modified punishment, specifying the term of life imprisonment in excess of 14 years, can be exercised even in cases where the death sentence is not imposed. reference may be made to gouri shankar vs. state of punjab5, wherein the trial court passed a sentence of life imprisonment, directing that it shall be for the remainder of the convict s natural life. noting that such a direction could not be passed by the trial court, this court considered it fit to order that the sentence of imprisonment for life in that case should mean till the remainder of the natural life of the convict. pertinent to note, this was not a case where death sentence was imposed and thereafter commuted to life imprisonment, as was the case in swamy shraddananda ( supra ) and v. sriharan ( supra ). on similar lines, in shiva kumar @ shiva @ shivamurthy vs. state of karnataka 6, this court was considering a case involving section 302 ipc

, where the trial court had sentenced the appellant to undergo rigorous imprisonment for the rest of his life. while noting that the power to impose a modified punishment providing for a specific term of incarceration or till the end of the convict s life, as an alternate to death penalty, can be exercised only 5 ( 2021 ) 3 scc 380 6 criminal appeal no. 942 of 2023, decided on 28. 03. 2023 = 2023 scc online sc 345 13 by the high courts and the supreme court and not by any other court, in terms of the law laid down in v. sriharan ( supra ), this court observed : 15. the above observations manifest the applicability of the same principle in cases where the maximum punishment prescribed by law is imprisonment for life with nothing further. even in such cases, it would be a parody of justice to allow the convicts so sentenced to avail the benefit of remissions and the like, liberally conferred by the state, and cut short the length of their life sentence to a mere 14 years. we are, therefore, of the considered opinion that the law laid down in swamy shraddananda ( supra ) and v. sriharan ( supra ) with regard to special category sentencing to life imprisonment in excess of 14 years by fixing a lengthier term would be available to the high courts and this court, even in cases where the maximum punishment, permissible in law and duly imposed, is life imprisonment with nothing further. we must, however, hasten to add that exercise of such power must be restricted to grave cases, where allowing the convict sentenced to life imprisonment to seek release after a 14 - year - term would tantamount to trivializing the very punishment imposed on such convict. needless to state, cogent reasons have to be recorded 17 for exercising such power on the facts of a given case and such power must not be exercised casually or for the mere asking. 16. in the case on hand, the appellant was found guilty of one of the most monstrous and horrific of offences, viz, the physical violation of his own daughter, who was not even in the first flush of youth. in the event he secures release after putting in just 14 years in jail, his possible re - entry into his daughter s life, while she is still in her twenties, may cause her further trauma and make her life difficult. his incarceration for a sufficiently long period would not only ensure that he receives his just deserts but also allow his daughter more time and maturity

to settle down and move on with her life, even if her villainous father is set at liberty. we are, therefore, of the opinion that this is a fit and deserving case for exercise of the power vesting in this court to impose a modified special category sentence of fixed - term life imprisonment. as pointed out by this court in madan gopal kakkad vs. naval dubey and another7, judges who bear the sword of justice should not hesitate to use that sword with utmost severity to the full and to the end, if the gravity of the offence so demands. 7 ( 1992 ) 3 scc 204 1817. the ends of justice would be sufficiently served if the life imprisonment of the appellant is for a minimum of 20 years of actual incarceration before he can seek remissions under the provisions of the code of criminal procedure, 1973, or any other enacted law. we, accordingly, direct so. imposition of fines and imprisonment in default of payment thereof shall stand confirmed. the appeal is disposed of in terms of the above directions.., j ( abhay s. oka )., j ( sanjay kumar ) april 25, 2023 new delhi.

m. r. shah, j. 1. feeling aggrieved and dissatisfied with the impugned judgment and order dated 02. 03. 2021 passed by the high court of telangana at hyderabad in criminal petition no. 1148 / 2021, by which, the high court has allowed the said bail application and has granted the anticipatory bail in favour of respondent no. 1 herein and has directed to release him on bail in the event of his arrest in connection with f. no. ecir / hyzo / 36 / 2020 dated 15. 12. 2020 on the signature not verified digitally signed by r natarajan date : 2023. 02. 24 16 : 49 : 43 ist file of the assistant director, enforcement directorate reason : ( hereinafter referred to as the ed ), government of india, 1 hyderabad, which was registered for the offence of money laundering under section 3 of the prevention of money laundering act, 2002 ( hereinafter referred to as the act, 2002 ) and punishable under section 4 of the said act, the directorate of enforcement has preferred the present appeal. 2. a fir was registered by economic offences wing ( eow ), bhopal vide fir no. 12 / 2019 dated 10. 04. 2019 wherein 20 persons / companies were named as suspected in the said scam. m / s max mantena micro jv, hyderabad was one among them. 2. 1 as per the fir, the government of madhya pradesh e procurement portal was being run by mpsedc. m / s antares systems limited, bangalore and m / s tata consultancy services ( tcs ) were given the contract for the period of 5 years for the maintenance & operation of the said portal. some of the officials of mpsedc in collusion with the companies entrusted with maintenance and testing of the portals namely m / s osmo it solutions and m / s antares systems ltd, illegally accessed the e tender 2 portal and rigged the bidding process to suit a few private bidders for huge amounts of bribe considerations. 2. 2 as per the investigating agency, the preliminary investigation by the police established that various e tenders were illegally accessed and bids of a few companies were manipulated to illegally make the bids of those concerns as the lowest one. 2. 3 apart from tenders mentioned in the first preliminary charge sheet filed by the eow bhopal namely

no. 91, 93, 94 ( water resource dept ) ; 2 tenders vide nos. 49985 & 49982 of pwd ; tender no 49813, tender no. 786 of mprdc ; and tenders vide nos. 10030 & 10044, it was suspected that many other tenders have also been tampered using the same modus operandi. m / s mantena group of companies, hyderabad, was suspected to be a major beneficiary of this e tender scam. as per the eow charge sheet, a joint venture of the mantena group known as m / s max mantena micro jv is the direct beneficiary of a tampered e tender no. 10030 worth rs. 1020 crore. 2. 4 according to the investigating agency, the investigation into the said fir for the offences under sections 120b, 3 420, 471 ipc and section 7 r / w section 13 ( 2 ) of prevention of corruption ( pc ) act is going on and the said offences are scheduled offences under the act, 2002. the ed has initiated money laundering investigation in file no. ecir / hyzo / 36 / 2020. 2. 5 according to the ed, in order to gather evidence, a search operation was conducted under the provisions of section 17 ( 1 ) of pmla, 2002. accordingly, 18 premises were searched including the residences of the promoters and offices of m / s mantena constructions ltd, m / s anteras pvt ltd, m / s osmo it solutions pvt ltd, m / s arni infra, etc. a good amount of incriminating documents and digital devices have been seized and are being examined for evidence. it is clear from the ed investigation done so far that a systematic conspiracy has been planned and executed by a number of infrastructure companies based at hyderabad in collusion with a few government officials and it management companies to illegally win e tenders. further large amounts of bribes running into crore ( s ) of rupees have exchanged hands using hawala channels. the public funds meant for development activities have been 4 diverted and siphoned off for personal illegal enrichment and for making illegal bribe payments. the appellant department has recovered fund trail evidence and generation of black money through bogus and over billing by the infra companies. 2. 6 that respondent no. 1 herein who at the relevant time was the additional chief secretary in

the water resources department in the state of madhya pradesh, was summoned by the ed to explain the sudden spurt in the allocation of tenders to m / s mantena construction during his stint in the state of mp. 2. 7 that apprehending his arrest in connection with ed case for the scheduled offence under the act, 2002, respondent no. 1 herein approached the high court by way of present anticipatory bail application under section 438 cr. pc. without considering the rigour / bar under section 45 of the act, 2002 and observing that as per the decision of this court in the case of nikesh tarachand shah vs. unoin of india and anr. ; ( 2018 ) 11 scc 1, the provisions of section 45 of the act, 2002 do not apply to section 438 cr. pc proceedings, the high court has allowed the 5 anticipatory bail application and has directed that in case of his arrest in connection with ed case he be released on bail. 2. 8 feeling aggrieved and dissatisfied with the impugned judgment and order passed by the high court granting anticipatory bail to respondent no. 1 in ed case, the directorate of enforcement ( ed ) has preferred the present appeal. 3. shri k. m. nataraj, learned asg, appearing on behalf of the ed appellant has vehemently submitted that in the facts and circumstances of the case, the high court has committed a very serious error in allowing the anticipatory bail application and granting anticipatory bail to respondent no. 1 in connection with ed case under the act, 2002. 3. 1 it is submitted that as such the high court has materially erred in observing that the provisions of section 45 of the act, 2002 shall not be applicable to section 438 cr. pc proceedings. it is submitted that for that the high court has erred in relying upon the decision of this court in the case of nikesh tarachand shah ( supra ). it is submitted 6 that subsequently in the case of the asst. director enforcement directorate vs. dr. v. c. mohan ( 2022 scc online sc 452 ) ( criminal appeal no. 21 / 2022 ), this court has clarified that it is the wrong reading of the decision in the case of nikesh tarachand shah ( supra ) that the provisions of section 45 of the act, 2002 shall not be applicable to the anticipatory bail proceedings. it is submitted that

in the case of dr. v. c. mohan ( supra ) it is specifically observed and held by this court that section 45 of the act, 2002 shall be applicable with respect to the offences under the act, 2002 and the rigour of section 45 of the act, 2002 shall get triggered although the application is under section 438 of cr. pc. it is submitted that therefore, the impugned judgment and order passed by the high court is just contrary to the decision of this court in the case of dr. v. c. mohan ( supra ). 3. 2 it is further submitted by shri k. m. nataraj, learned asg appearing on behalf of the ed that even otherwise while granting the anticipatory bail the high court has not properly appreciated and / or considered the seriousness of 7 the offences which are scheduled offences under the act, 2002. it is submitted that the high court has considered the anticipatory bail application, as if, the high court was dealing with the prayer for anticipatory bail in connection with the ordinary offences under ipc. 3. 3 it is further vehemently submitted by learned asg that during investigation, the ed investigation has established that there is a nexus between srinivas raju mantena and respondent no. 1 herein and the same needs to be investigated in detail. 3. 4 it is submitted that the ed had gathered material which indicates nexus between respondent no. 1 and srinivas raju mantena, who is found to have committed the offences of money laundering. it is submitted that respondent no. 1 was summoned by ed but instead of appearing before the io, he filed a criminal petition before the high court and obtained the interim relief. it is submitted that he appeared before the ed and his statement was recorded under section 50 of the act, 2002. it is submitted that however on both the occasions he was 8 totally evasive and non cooperative and therefore, his custodial interrogation is required. 3. 5 it is further submitted by learned asg that during the investigation the ed has found that respondent no. 1 had availed and enjoyed free trips in last one year alone on the luxury plane of mantena on multiple occasions. it is submitted that during investigation it has been found that respondent no. 1 had also availed other patronages from srinivas raju mantena like sponsoring foreign exchange through hawala channels for his son. 3. 6 it is submitted that while granting anticipatory bail

to respondent no. 1 the high court has not considered the nature of allegations and seriousness of offences alleged against respondent no. 1 who at the relevant time was working as an additional chief secretary. 3. 7 making the above submissions and relying upon above decision as well as the decision of this court in the case of p. chidambaram vs. directorate of enforcement ; ( 2019 ) 9 scc 24 as well as the decision in the case of y. s. jagan mohan reddy vs. cbi ; ( 2013 ) 7 scc 439, it is 9 prayed to allow the present appeal and quash and set aside the impugned judgment and order passed by the high court. 4. present appeal is vehemently opposed by shri vijay agarwal, learned counsel appearing on behalf of respondent no. 1 herein. 4. 1 it is vehemently submitted by learned counsel appearing on behalf of respondent no. 1 that in the facts and circumstances of the case the high court has not committed any error in granting anticipatory bail to respondent no. 1. 4. 2 it is vehemently submitted that in the present case so far as the main fir is concerned, the other accused have been acquitted / discharged. it is submitted that as held by this court in the catena of decision that if the person is finally discharged / acquitted of the scheduled offence or the criminal case against him is quashed by the court of competent jurisdiction, there can be no offence of money laundering against him or any one claiming such property being the property linked to stated scheduled offence through him. 10 4. 3 it is further submitted that in the present case even respondent no. 1 was not named in the fir for the scheduled offence ( s ). 4. 4 it is further submitted that the offence under the act, 2002 is dependent on predicate offence which would be ordinary law including the provisions of the ipc. it submitted that therefore, as other accused persons have been acquitted / discharged for the predicate offence / schedule offence there is no question of any offence by respondent no. 1 under the act, 2002 / money laundering. 4. 5 it is further submitted by learned counsel appearing on behalf of respondent no. 1 that while granting the anticipatory bail the high court has followed the decision of this court in the case of nikesh tarachand shah ( supra ), the law which was prevalent at the relevant time. 4. 6 it is submitted that the prospective overruling of the said decision by this court in the case of dr.

v. c. mohan ( supra ) therefore, cannot be pressed into service while challenging the impugned judgment and order passed by 11 the high court granting anticipatory bail relying upon the decision / law prevalent at the relevant time. 4. 7 it is further submitted by learned counsel appearing on behalf of respondent no. 1 that in the present case cogent reasons have been given by the high court while granting anticipatory bail to respondent no. 1 and considering the fact that respondent no. 1 has cooperated in the investigation and appeared twice earlier before the io / ed, the impugned judgment and order passed by the high court granting anticipatory bail may not be interfered with by this court. 5. we have heard learned counsel appearing on behalf of the respective parties at length. at the outset, it is required to be noted that respondent no. 1 is apprehending his arrest in connection with the complaint / case by the ed for the offence of money laundering under section 3 of the prevention of money laundering act, 2002 and punishable under section 4 of the said act. an enquiry / investigation is going on against respondent no. 1 for the scheduled offence in connection with fir no. 12 / 2019. once the enquiry / investigation against respondent no. 1 is going on 12 for the offence under the act, 2002, the rigour of section 45 of the act, 2002 would be attracted. section 45 of the act, 2002 reads as under : 45. offences to be cognizable and non bailable. ( 1 ) [ notwithstanding anything contained in the code of criminal procedure, 1973 ( 2 of 1974 ), no person accused of an offence [ under this act ] shall be released on bail or on his own bond unless ] ( i ) the public prosecutor has been given an opportunity to oppose the application for such release ; and ( ii ) where the public prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail : provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm [ or is accused either on his own or along with other co accused of money laundering a sum of less than one crore rupees ], may be released on bail, if the special court so directs : provided further that the special court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by ( i ) the director

; or ( ii ) any officer of the central government or a state government authorised in writing in this behalf by the central government by a general or special order made in this behalf by that government. [ ( 1 a ) notwithstanding anything contained in the code of criminal procedure, 1973 ( 2 of 1974 ), or any 13 other provision of this act, no police officer shall investigate into an offence under this act unless specifically authorised, by the central government by a general or special order, and, subject to such conditions as may be prescribed. ] ( 2 ) the limitation on granting of bail specified in [ * * * ] sub section ( 1 ) is in addition to the limitations under the code of criminal procedure, 1973 ( 2 of 1974 ) or any other law for the time being in force on granting of bail. 5. 1 by the impugned judgment and order, while granting anticipatory bail the high court has observed that the provisions of section 45 of the act, 2002 shall not be applicable with respect to the anticipatory bail applications / proceedings under section 438 cr. pc. for which the high court has relied upon the decision of this court in the case of nikesh tarachand shah ( supra ). in the case of dr. v. c. mohan ( supra ), this court has specifically observed and held that it is the wrong understanding that in the case of nikesh tarachand shah ( supra ) this court has held that the rigour of section 45 of the act, 2002 shall not be applicable to the application under section 438 cr. pc. in the case of dr. v. c. mohan ( supra ) in which the decision of this court in the case of 14 nikesh tarachand shah ( supra ) was pressed into service, it is specifically observed by this court that it is one thing to say that section 45 of the act, 2002 to offences under the ordinary law would not get attracted but once the prayer for anticipatory bail is made in connection with offence under the act, 2002, the underlying principles and rigours of section 45 of the act, must get triggered although the application is under section 438 cr. pc. therefore, the observations made by the high court that the provisions of section 45 of the act, 2002 shall not be applicable in connection with an application under section 438 cr. pc is just contrary to the decision in the case of dr. v. c. mohan ( supra ) and the same is on misunderstanding of the observations made

in the case of nikesh tarachand shah ( supra ). once the rigour under section 45 of the act, 2002 shall be applicable the impugned judgment and order passed by the high court granting anticipatory bail to respondent no. 1 is unsustainable. 6. even otherwise on merits also, the impugned judgment and order passed by the high court granting anticipatory 15 bail to respondent no. 1 is erroneous and unsustainable. while granting the anticipatory bail to respondent no. 1 the high court has not at all considered the nature of allegations and seriousness of the offences alleged of money laundering and the offence ( s ) under the act, 2002. looking to the nature of allegations, it can be said that the same can be said to be very serious allegations of money laundering which are required to be investigated thoroughly. as per the investigating agency, they have collected some material connecting respondent no. 1 having taken undue advantage from srinivas raju mantena. from the impugned judgment and order passed by the high court, it appears that the high court has considered the matter, as if, it was dealing with the prayer for anticipatory bail in connection with the ordinary offence under ipc. 6. 1 now so far as the submissions on behalf of respondent no. 1 that respondent no. 1 was not named in the fir with respect to the scheduled offence and that the other accused are discharged / acquitted is concerned, merely because other accused are acquitted, it cannot be a 16 ground not to continue the investigation against respondent no. 1. an enquiry / investigation is going on against respondent no. 1 with respect to the scheduled offences. therefore, the enquiry / investigation itself is sufficient at this stage. 6. 2 while granting the anticipatory bail, what is weighed with the high court and what is observed by the high court is as under : a careful reading of the aforesaid legal position and in the light of the circumstances of the case on hand, which clearly indicates that the 1st respondent has a doubt regarding the involvement of the petitioner in commission of the crime and he is being summoned for disclosure and in case of his non disclosure of any material, on the pretext of non co operation, the 1st respondent may proceed to arrest him. the petitioner is a retired employee aged about 60 years and is a permanent resident of hyderabad, further, major part of the investigation has been completed with respect to the incriminating documents and digital devices, which have already been seized. hence, there may not be a

chance of tampering with the investigation at this stage, because as rightly pointed out by the learned senior counsel for the petitioner that a criminal case has already been filed against the other accused and the same is pending before the special court at bhopal. 6. 3 from the aforesaid, it can be seen that the high court has not at all considered the nature of allegations and the seriousness of the offences alleged against respondent no. 1. as per the catena of decision of this court, more particularly, observed in the case of p. chidambaram 17 ( supra ) in case of economic offences, which are having an impact on the society, the court must be very slow in exercising the discretion under section 438 of cr. pc. 7. considering the overall facts and circumstances of the case and the reasoning given by the high court and as observed hereinabove, the rigour of section 45 of the act, 2002 shall be applicable even with respect to the application under section 438 cr. pc and therefore, the impugned judgment and order passed by the high court granting anticipatory bail to respondent no. 1 herein in connection with f. no. ecir / hyzo / 36 / 2020 dated 15. 12. 2020 is unsustainable. consequently, the impugned judgment and order passed by the high court granting anticipatory bail to respondent no. 1 is hereby quashed and set aside. respondent no. 1 be dealt with in accordance with law. however, it is observed and made clear that after respondent no. 1 is arrested, if he files any regular bail application, the same be considered in accordance with law and on its own merits and considering the material collected during 18 enquiry / investigation of the case. present appeal is accordingly allowed. no costs.. j.

m. r. shah, j leave granted. 1. feeling aggrieved and dissatisfied with the impugned judgment and order dated 24. 09. 2019 passed by the high court of madhya pradesh, bench at indore in criminal appeal no. 1244 / 2011, by which the high court has allowed the said appeal preferred by the respondent herein jad bai and has acquitted her for the offences punishable under section 302 read with section 34 of the indian penal code ( for short, ipc ) by observing that the prosecution has failed to prove the case of common intention against her, the state of madhya pradesh has preferred the present appeal. signature not verified digitally signed by r natarajan2. the respondent herein and the co - accused husband and son of date : 2023. 02. 24 16 : 49 : 46 ist reason : the respondent, all were tried and ultimately convicted for the offences 1 punishable under section 302 read with section 34 of the ipc for having killed vesta, the deceased. 3. that an fir was lodged by one nanbai wife of the deceased at the police station nanpur, alleging that on the diwali night at about 10 : 00 or 11 : 00 pm the elder brother of her husband ( jeth ) accused no. 1 sekadiya and his son mukesh accused no. 2 came to her house to call her husband saying that there had been cooked murga in their house. according to the complainant, her husband vesta went along with accused no. 1 and accused no. 2. according to the complainant after sometime, she heard the voice of crying / scream of her husband and she immediately rushed to the house of her jeth accused no. 1 sekadiya and she saw in the light of electricity that accused no. 3 jethani ( wife of accused no. 1 sekadiya ) had caught hold her husband vesta and accused no. 1 assaulted her husband by axe on the head, due to which vesta fell down. as per the case of the prosecution, the husband of the complainant vesta died due to injuries from the axe. according to the prosecution there was a land dispute and therefore the accused persons killed the deceased by calling him at their house. according to the prosecution the accused persons committed the offences punishable under section 302 read with section 34 of the ipc. after conclusion of the investigation, the investigating officer filed the 2 chargesheet against the accused for the aforesaid offences. the

accused pleaded not guilty and therefore all of them claimed to be tried by the learned sessions court for the offences punishable under section 302 read with section 34 of the ipc. to prove the charge against accused the prosecution examined in all eight witnesses out of which nanbai pw1 was the eye witness. the prosecution also brought on record the documentary evidences including the medical evidence through various witnesses. on closure of the evidence on the side of the prosecution, statements of accused under section 313 cr. pc were recorded in which the accused stated that they have been falsely implicated in the case at the instance of the sarpanch due to enmity of election. on appreciation of evidence, the learned trial court held all the accused guilty for the offences punishable under section 302 read with section 34 of the ipc and sentenced all of them to undergo life imprisonment. 4. feeling aggrieved and dissatisfied with the judgment and order passed by the learned trial court, all the accused preferred an appeal before the high court. by the impugned judgment and order, the high court has partly allowed the said appeal and has acquitted the respondent herein original accused no. 3 jad bai, wife of original 3 accused no. 1, however, dismissed the appeal qua original accused nos. 1 & 2. 5. feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the high court acquitting the respondent herein jad bai, original accused no. 3, the state of madhya pradesh has preferred the present appeal. 6. shri yashraj singh bundela, learned counsel appearing on behalf of the state has vehemently submitted that in the facts and circumstances of the case, the high court has committed a very serious error in acquitting the respondent herein original accused no. 3 by holding that the prosecution has failed to prove the case of common intention. 6. 1 it is submitted that in the present case, pw1 - nanbai, the wife of the deceased was the eyewitness and in her deposition she specifically stated that the respondent jad bai caught hold of the deceased. it is submitted that therefore the presence of the respondent at the place of incident has been established and according to her deposition, the respondent caught hold of the deceased and her husband original accused no. 1 caused injuries on the deceased. it is submitted that therefore the learned trial court rightly convicted the respondent 4 original accused no. 3 for the offences punishable under section 302 with the aid of section 34 of the ipc, along with the other

accused. 6. 2 it is further submitted that as such the incident occurred at the house of the respondent. it is submitted that in her section 313 statement, the respondent has not explained why she was holding and / or caught hold of the deceased. 6. 3 learned counsel appearing on behalf of the state, relying upon a recent decision of this court in the case of state of rajasthan v. gurcharan singh and others, reported in 2022 scc online sc 1716, has vehemently submitted that as observed and held by this court, common intention can be formed at the spur of the moment and during the occurrence itself. it is submitted that it is further observed and held by this court that, whether or not there exists a common intention, has to be determined by drawing inference from the facts proved. 6. 4 learned counsel appearing on behalf of the state has also heavily relied upon the decision of this court in the case of major singh v. state of punjab, reported in ( 2002 ) 10 scc 60 in support of his case that the respondent was rightly convicted by the learned trial court for the offences punishable under section 302 with the aid of section 34 of the ipc. 57. ms. jesal wahi, learned amicus curiae has vehemently submitted that in the facts and circumstances of the case and by giving cogent reasons when the high court has acquitted the respondent - accused, the same may not be interfered with by this court, in exercise of powers under article 136 of the constitution of india. 7. 1 learned amicus has taken us to the deposition of pw1 nanbai. it is vehemently submitted that from her deposition, it can be seen that she had never seen original accused no. 1 causing injuries on the body of the deceased. it is submitted that in fact she had come at the place of the incident after the entire incident had taken place and the deceased was lying with injuries. it is submitted that what is stated by her in her deposition is that the respondent accused had caught hold of the deceased. it is submitted that she has not stated in her deposition that in fact she had seen the respondent jad bai causing any injury and / or taking any active part in causing the death of the deceased. it is submitted that therefore the high court has rightly acquitted the respondent by observing that the prosecution has failed to prove the common intention shared by the respondent with the other accused, namely, original accused no. 1. 7. 2 making above submissions and relying upon

the decisions of this court in the cases of mukesh v. state of madhya pradesh, reported 6 in ( 2022 ) 3 scc 241 and ramashish yadav v. state of bihar, reported in ( 1999 ) 8 scc 555, it is prayed to dismiss the present appeal. 8. we have heard learned counsel appearing on behalf of the parties at length. we have gone through the judgment and order of conviction passed by the learned trial court as well as the impugned judgment and order passed by the high court. we have also considered and gone through in detail the deposition of pw1 nanbai, an eyewitness to the incident. 9. the learned trial court convicted the respondent jad bai original accused no. 3 for the offences punishable under section 302 with the aid of section 34 of the ipc. by the impugned judgment and order, the high court has acquitted the respondent original accused no. 3 by observing and holding that the prosecution has failed to prove the case of common intention. 10. the entire prosecution case rests on the sole testimony of pw1 eyewitness to the incident. pw1 is the wife of the deceased. she has categorically stated in her deposition that the incident occurred in the house of the respondent original accused no. 3. she has specifically stated that original accused no. 1 husband of the respondent caused four injuries on the head of the deceased. she has also stated that the 7 respondent caught hold of the deceased. she has also stated that thereafter the respondent original accused no. 3 dragged the dead body of the deceased and thrown it on the gate of her house. it is the case on behalf of the accused that pw1 was not present at the time when the original accused no. 1 caused injuries on the deceased. according to the learned counsel appearing on behalf of the respondent, pw1 came subsequently and at that time she had seen the respondent having caught hold of the deceased. the aforesaid has no substance. the deposition of the eyewitness is required to be considered as a whole and it cannot be in a particular part or sequence. on considering the deposition of pw1 as a whole, the presence of the respondent at the place of the occurrence has been established. the prosecution has also established that the respondent caught hold of the deceased. in her section 313 statement, the respondent original accused no. 3 has not explained why she caught hold of the deceased. thus, the participation in action of the respondent has been established and proved. if the respondent would

not have caught hold of the deceased, in that case the original accused no. 1 might not have been able to cause injuries on the head of the deceased. thus, it can be seen that the respondent participated actively in commission of the offence and shared the common intention to kill the deceased. 811. in the case of gurbachan singh ( supra ), it is observed and held as under : 12. now so far as the decisions relying upon on behalf of the respondent in the cases of mukesh ( supra ) and ramashish yadav ( supra ) are concerned, on facts and in light of the deposition of pw1 eyewitness and that she has specifically stated that the respondent caught hold of the deceased, the said decisions shall not be of any assistance to the respondent. 13. in the present case, the participation in action of the respondent in commission of the offence and the common intention to commit the murder of the deceased with original accused no. 1 husband of the 9 respondent have been established and proved by the prosecution. therefore, the high court has committed a very serious error in acquitting the respondent for the offences punishable under section 302 with the aid of section 34 of the ipc. 14. in view of the above and for the reasons stated above, the present appeal succeeds. the impugned judgment and order dated 24. 09. 2019 passed by the high court of madhya pradesh, bench at indore in criminal appeal no. 1244 / 2011, acquitting the respondent herein original accused no. 3 for the offences punishable under section 302 with the aid of section 34 of the ipc is hereby quashed and set aside and the judgment and order dated 24. 08. 2011 passed by the learned trial court in sessions trial no. 204 / 2010, convicting the respondent herein original accused no. 3 for the offences punishable under section 302 with the aid of section 34 of the ipc is hereby restored. as we have quashed and set aside the impugned judgment and order passed by the high court acquitting the respondent herein, respondent jad bai is directed to surrender before the concerned jail authorities within a period of six weeks from today to undergo the remaining sentence as per the judgment and order passed by the learned trial court, failing which she may be taken into custody on the expiry of six weeks time to serve out the remaining sentence. 1015. the instant appeal is allowed accordingly... j.

sanjay kumar, j1. by judgment dated 30. 08. 2016 passed in sessions case no. 81 of 2012, the learned vi additional district and sessions judge, sompeta, held the accused therein, viz., dakkata balaram reddy ( a1 ) and chinapana gopi ( a2 ), guilty of offences punishable under sections 302, 397 and 450 ipc and sentenced them accordingly. their conviction signature not verified digitally signed by and sentence stood confirmed when the high court for the state of arjun bisht date : 2023. 04. 21 14 : 57 : 58 ist reason : telangana and the state of andhra pradesh dismissed criminal appeal 1 no. 915 of 2016 filed by the two accused, vide judgment dated 03. 10. 2018. aggrieved thereby, both the accused are before this court. 2. heard shri r. basant, learned senior counsel, appearing for the appellants / accused ; shri mahfooz ahsan nazki, learned counsel, appearing for the state of andhra pradesh ; and shri y. raja gopala rao, learned counsel for the second respondent, viz., the complainant. 3. the case of the prosecution : the complainant, vetcha kesava rao ( pw - 1 ), is a resident of ichapuram and his house is situated on chinnamedaraveedhi, wherein he also did his gold and silver business. a1 is a civil contractor while a2, his brother - in - law, is an ex - serviceman. on 21. 08. 2008 at about 9. 00 pm, in pw - 1 s absence, a1 and a2 trespassed into his house concealing iron rods under their shirts and brutally killed his son, vetcha kiran kumar ( deceased no. 1 ), and his wife, vetcha venkatagopala lakshmi ( deceased no. 2 ) ; robbed gold ornaments, weighing about 3. 543 kgs., and cash of 18, 340 / -. at about 11. 00 pm on the same night, pw - 1 lodged a written report against them at ichapuram town police station. thereupon, crime no. 61 of 2008 was registered by the sub - inspector of police, ichapuram rural p. s. ( pw - 23 ), and he informed the inspector

of police who was holding additional charge of ichapuram circle ( pw - 26 ). pw - 26 immediately took up investigation. he 2 visited the scene of offence and held an inquest over the dead bodies in the presence of mediators. upon receiving information, he arrested a2 at 01. 15 am on 22. 08. 2008 at radhamveedhi, jagannadhaswamy temple, ichapuram, in the presence of mediators and recovered from his possession part of the stolen property, i. e., gold ornaments weighing 1748 grams 750 milligrams and cash of 18, 340 / -. he then arrested a1 at 04. 00 am on 22. 08. 2008 from gollaveedhi, ichapuram, and recovered gold ornaments weighing 1794 grams 370 milligrams from his possession in the presence of mediators. thus, pw - 26 recovered the gold ornaments weighing 3. 543 kgs. from the accused along with the cash. he also examined several witnesses. he went to the scene of the offence and prepared a rough sketch. at his request, the inspector of police, fpb unit, srikakulam ( pw - 24 ), went to the scene of the offence along with the clues team and developed four chance fingerprints. thereafter, the inspector of police, ichapuram circle ( pw - 27 ), took up further investigation. he visited the scene of offence, examined witnesses and recorded their statements. after completion of the investigation, he filed a charge sheet against the accused. charges were framed against them under sections 302, 379, 394 r / w 397, 411 and 450 ipc. they pleaded not guilty and claimed to be tried. 34. during the trial, the prosecution examined 27 witnesses and marked exs. p - 1 to p - 21 in evidence, apart from producing material objects ( mos ) 1 to 99. the accused did not adduce evidence but were examined under section 313 cr. p. c. upon considering the evidence and the mos, the learned vi additional district and sessions judge, sompeta, held the accused guilty of the offences punishable under sections 302, 397 and 450 ipc. they were sentenced to undergo imprisonment for life under section 302 ipc and to pay fine of 2, 000 / - each ; imprisonment for a period of 10 years under section 450 ipc and to pay a fine of 2, 000 / - each

; and imprisonment for 7 years under section 397 ipc. further imprisonment was directed for default in payment of fines. 5. aggrieved thereby, the accused filed criminal appeal no. 915 of 2016 before the high court. by judgment dated 03. 10. 2018, a division bench of the high court opined that the circumstantial evidence, in corroboration with the medical evidence, the weapons used and the manner in which the attack was made, established that the accused intended to cause the death of the inmates of the house of pw - 1, fulfilling the essential ingredients of the offence under section 300 ipc, punishable under section 302 ipc. the high court, therefore, concluded that there 4 was no merit in the case and dismissed the same. hence, this appeal by special leave under article 136 of the constitution. 6. at the outset, it would be apposite to note the scope of jurisdiction under article 136 of the constitution in a case of this nature, where the trial court and the high court have concurrently returned findings of guilt against the accused. in pappu vs. the state of uttar pradesh [ ( 2022 ) 10 scc 321 ], this court pointed out that, in an appeal by special leave under article 136 of the constitution against concurrent findings of fact by the trial court and the high court after appreciation of evidence, each and every finding of fact cannot be contested and such an appeal cannot be dealt with as if this court is another forum for reappreciation of evidence. it was observed that it is only if the assessment by the trial court and the high court can be said to be vitiated by any error of law or procedure or misreading of evidence or in disregard to the norms of judicial process, leading to serious prejudice or injustice, that this court may, and in appropriate cases would, interfere in order to prevent grave or serious miscarriage of justice, but such a course is to be adopted only in rare and exceptional cases of manifest illegality. it was further observed that such an appeal is not a regular appeal and this court would not interfere with concurrent findings of fact based on pure 5 appreciation of evidence and it is not the scope of such appeal that this court would enter into reappreciation of evidence so as to take a view different from that taken by the trial court and approved by the high court. 7. earlier, in sambhu das alias bijoy das and another vs. state of assam [ ( 2010 ) 10 scc 374 ],

this court affirmed that article 136 of the constitution does not confer a right of appeal on a party and only confers discretionary power on this court to be exercised sparingly to interfere in suitable cases where grave miscarriage of justice has resulted from illegality or misapprehension or mistake in reading evidence or from ignoring, excluding or illegally admitting material evidence. 8. this being the settled legal position, the case on hand may now be examined. there are no eye - witnesses to the actual commission of the offence and the case is built on circumstantial evidence. trite to state, in such a situation, the chain of evidence must be so complete as to not leave any reasonable grounds for a conclusion consistent with the innocence of the accused ; the accused must be and not merely may be guilty, before the court can convict, and the facts established should be consistent only with the hypothesis of the guilt of the accused [ see hanumant govind nargundkar vs. state of m. p. ( air 1952 sc 343 ) ]. 69. in this context, the following facts may be noted : vetcha kesava rao ( pw - 1 ) stated that, on 21. 08. 2008 at about 05. 00 pm, he went to sompeta for business purposes and received a call from pw - 7 / lw - 8 at about 09. 30 pm that the accused went to his house at about 09. 00 pm and that they heard loud cries and shouts coming from the house. pw - 7 then told him that after some time a1 ran away with small bundles of gold while he and lws 6 & 7 ( pw - 4 and pw - 6 ) were watching and a2 fled from upstairs towards the backside portion. pw - 1 stated that he returned from sompeta and reached his house at about 10. 00 or 10. 30 pm and by that time, people had gathered outside his house and all the doors of his house were open. his son was lying in a pool of blood near the sofa in the shop room and there was an iron rod on the floor, and in the southern side room, his wife was lying in a pool of blood and he found another iron rod near her. all the gold ornaments were missing from the shop almirah and the show case. he then went to the police station and lodged a report ( ex

. p - 1 ). pw - 1 stated that he told the police that his wife and son were killed by the accused. he also informed the police that he had lost gold ornaments and cash of 18, 340 / -. in his cross - examination, he stated that the accused were his customers and used to purchase gold 7 or take money from him. he denied knowledge of a1 being a contractor and his financial position. 10. the civil assistant surgeon, community health centre, ichapuram ( pw - 19 ), conducted the post - mortem examination of the body of deceased no. 1. he issued a post - mortem certificate ( ex. p - 14 ) stating that the cause of his death was shock due to brain injury and hemorrhage following a head injury. another civil assistant surgeon at the community health centre, ichapuram ( pw - 20 ), conducted the autopsy over the body of deceased no. 2 and issued a post - mortem certificate ( ex. p - 15 ) stating to the same effect as to the cause of her death. both pw - 19 and pw - 20 denied the suggestion that the injuries on the bodies of the deceased could have been caused by falling from the first floor. in effect, it can safely be said that their deaths were homicidal in nature. more so, as blood - stained iron rods ( mos1 and 2 ) were found near the bodies. 11. though there were no eye - witnesses to the actual killings, there were three separate witnesses who spoke of seeing one or both of the accused running away from the house of pw - 1 at that late hour on the fateful night. pws 4, 6, and 10 are those witnesses. pw - 4 stated that he was also doing gold and silver business and knew pw - 1 as well as the accused. he stated that, on 21. 08. 2008 at about 09. 00 pm, he and pw - 6 8 were going to his sister s house at dabburi street via medaraveedhi and at that time, they heard loud voices coming from pw - 1 s house. they shouted as to what was happening inside the house. a number of people gathered at the house. then, a1 came out from the house of pw - 1 and ran away. after that, the police came to the house of pw - 1. along with them, they

all went inside the house of pw - 1 and found that the wife and son of pw - 1 were lying dead. pw - 1 s son was lying in the shop room and the body of pw - 1 s wife was at the bath room which was after the shop room. pw - 1 then returned from camp. during the investigation, on 11. 12. 2008, his statement was recorded under section 164 cr. p. c. by the judicial first class magistrate, sompeta ( ex. p2 ). at this stage, pw - 4 was declared hostile and was cross - examined by the prosecution. he denied having stated before the police that the accused had entered the house of pw - 1 and had stolen gold ornaments and cash. in his cross - examination by the defence, pw - 4 stated that pw - 1 s house was in the centre of chinnamedaraveedhi and on both sides, houses were situated. he stated that he did not know whether pw - 1 used to advance loans on pledging of gold ornaments. 12. pw - 6 stated that, on 21. 08. 2008 at about 09. 00 pm, he and pw - 4 were going towards his house and pw - 4 was then going to his 9 sister s house via chinnamedaraveedhi. by the time they reached pw - 1 s house, they heard cries and shouted as to what happened. in the meanwhile, 10 to 15 people gathered there. then, a1 came outside from pw - 1 s house and ran away on a bike with a bag on his shoulder. after 5 or 10 minutes, a2 jumped from the upstairs of pw - 1 s house to the neighbouring house and from there, he jumped down. at that time, a2 was also holding a bag. after one hour, pw - 1 returned to his house and the police also came there. in the first room, i. e., the gold shop, pw - 1 s son was found in a pool of blood and his wife s body was found near the bathroom towards the backside of the shop. iron rods were found near the bodies. in his cross - examination, pw - 6 stated that about 3 or 4 people were present at pw - 1 s house by the time they were passing there. he further stated that a1 was a

contractor and possessed 8 lorries. he however disclaimed knowledge of a1 doing gold business or having constructed a temple. he could not say the colour of the wearing apparel and the colour of the bags carried by the accused. 13. pw - 7 stated that, on 21. 08. 2008 at about 09. 00 pm, he closed his kirana shop and was returning home and by the time he reached pw - 1 s house, he heard loud sounds coming from pw - 1 s house and some people had gathered there. he stated that he called pw - 1 and 10 informed him that loud sounds were coming from his house and pw - 1 said that he would return home. at about 10. 30 pm, pw - 1 returned to the house and a police report was given. after the police came, they went inside the house and on the left side near the sofa in the shop room, pw - 1 s son was lying in a pool of blood. his wife was lying in a pool of blood by the bathroom and iron rods were present near the bodies. he further stated that all the things were shattered in the house of pw - 1 and around 4 kgs. of gold and cash was stolen / lost. in his cross - examination, he stated that, by the time the police came there, he was present outside pw - 1 s house. significantly, pw - 7 did not say anything about the presence of the accused or about informing pw - 1 of their entering and leaving his house. 14. pw - 10 resided in the 2nd house opposite the house of pw - 1. he stated that, on 21. 08. 2008 at about 09. 30 pm, while he was taking dinner, he heard sounds from outside. when he came out, he saw around 10 people gathered in the street. meanwhile, a1 ran away from pw - 1 s house and then a2 ran away from pw - 1 s house. both of them were holding bags. later, he came to know that the accused had murdered pw - 1 s wife and son and ran away with gold. he stated that pw - 1 came to the house within half an hour or one hour. police also came to the 11 house. he went to the house and saw the bodies of deceased. in his cross - examination, he admitted that he did not state

before the police that a1 and a 2 were holding bags and left pw - 1 s house in a hurry. 15. now, coming to the apprehension and arrest of the accused. pw - 17 stated that he was the village revenue officer of koligam village and on 22. 08. 2008, at around 01. 00 am, he was called to ichapuram town police station by the inspector of police. lw - 27 was already there by then. he stated that both of them and the police went to radham street near jagannadhaswamy temple. at that time, one person was seen running away from that place and the police chased and caught hold of him. he was holding a bag in his hand. he stated that his name was chinapana gopi ( a2 ) and he allegedly confessed to commission of the crime. the bag was seized and opened in their presence. they found gold ornaments and cash of 18, 340 / - inside. at about 04. 00 or 04. 30 am on the same day, he went to ichapuram town police station and both the accused were present there. the police then seized the blood - stained clothes of both the accused in his presence. in his cross - examination, he stated that he did not remember the colour of the bag seized from a2 or the number of ornaments seized. 1216. pw - 16, the village revenue officer, purushottapuram, ichapuram mandal, stated that, on 22. 08. 2008 at about 02. 30 am, the inspector of police, ichapuram, called him and lw - 25 and both of them, along with the inspector of police and other police staff, went to gollaveedhi in a police jeep. on seeing the police jeep, one person started running but the police chased and caught hold of him. he was brought before the inspector of police and on questioning as to why he was running, he identified himself as dakkata balaram reddy ( a1 ). he allegedly confessed to having killed pw - 1 s wife and son and taking gold ornaments. upon being questioned about the ornaments, he brought the ornaments in a bag from his room, i. e., about 30 items. pw - 16 further stated that, at about 04. 40 am on the same day, the inspector of police called him to

the police station and he along with lw - 26 went there. the police seized the yellow t - shirt ( mo 97 ) and light cement - coloured jeans pant ( mo 98 ) of a1 along with the blood - stained jeans of cement color ( mo 99 ) of a2. 17. pw - 26 worked as the inspector of police at sompeta from 13. 10. 2006 to 19. 09. 2008. he stated that, on 21. 08. 2008, while he was holding additional charge of ichapuram circle, he received information from the sub - inspector of police, ichapuram rural police station ( pw - 23 ) 13 about the subject crime. he immediately rushed there and also flashed radio messages for conducting vehicle checking to apprehend the accused. he visited the scene of offence at 11. 45 pm and noted the dead bodies. in the meanwhile, he received information about the movement of the culprits and left the scene of the offence. he secured two mediators and along with his staff, he went to radhamveedhi, jagannadhaswamy temple, at about 01. 15 am and noticed one person, carrying a hand bag, trying to escape upon seeing the police. he apprehended the person ( a2 ) and questioned him about the contents of the bag. he interrogated him and he confessed to the commission of the offence. the bag carried by him was verified and gold ornaments along with cash of 18, 340 / - were found therein. then, pw - 26, along with the accused, his staff and mediators, rushed to the house of the other accused, dakkata balaram reddy, situated on gollaveedhi of ichapuram municipality, and upon seeing the police, one person ( a1 ) tried to escape. he was apprehended and interrogated in the presence of mediators. he also confessed to commission of the offence and corroborated the version given by the other accused. pw - 26 stated that he then questioned him about the stolen property and he fetched a bag from the side room of the house along with blood - stained clothes and handed over the same to him. the bag 14 contained gold ornaments. pw - 26 then arrested a1 at about 04. 00 am and brought both the accused to the police station along with the seized property. upon further questioning as to their clothes at the

time of the offence, they disclosed that they were wearing the same clothes at the time of offence. he then secured some other clothes and seized their blood - stained clothes. 18. pw - 27 stated that he worked as the inspector of police, ichapuram, from 09. 02. 2008 to 09. 05. 2010. he stated that he took up further investigation in the case on hand on 31. 08. 2008 and that pw - 26 had conducted investigation till then. he spoke of the test identification parade of the seized gold ornaments conducted in the presence of mediators. 19. the inspector of police, fpb unit, srikakulam, was examined as pw - 24. he stated that, on receipt of a telephone message from the police station, ichapuram, he visited the scene of offence along with a clues team on 22. 08. 2008 at about 06. 00 am and developed four chance fingerprints on a glass show case and one chance fingerprint on a cream - coloured plastic box. he stated that he found photocopies of two of the chance prints unfit for comparison but the chance prints marked as a, d and e were fit for comparison. the fingerprints marked as a and e 15 tallied with the fingerprints of the two accused. in his cross - examination, he stated that he did not receive the specimen fingerprints of the accused through the court but from the investigating officer. insofar as this fingerprint evidence is concerned, we find that the same was liable to be eschewed from consideration as the accused were already in custody by the time the so - called chance fingerprints were lifted from the scene of the offence. more importantly, the prescribed procedure was not followed in gathering this so - called evidence. no report was drawn up at the time of lifting of these chance prints in the presence of credible witnesses. similarly, no report was prepared even at the time the specimen fingerprints of the accused were taken. therefore, pw - 24 s evidence that two of the chance prints tallied with the fingerprints of the accused cannot be given any weightage. failure in following the due procedure rendered the findings of pw - 24 wholly unreliable. 20. shri r. basant, learned senior counsel, would contend that there is no evidence of any light being available outside the house of pw - 1, whereby the witnesses could have seen the accused running away with bags. we are of

the opinion that it would not be open to the accused to raise this factual aspect at this late stage. it was never put in issue that the area in question did not have adequate street lights, whereby the 16 evidentiary value of the statements of witnesses as to what they had seen could be attacked. more so, as it has come on record that apart from the jewellery shop of pw - 1, there were other jewellery shops in the vicinity and the police station itself was just half a kilometer away. if that was so, it is difficult to believe that there would be no street lighting in such an area. in any event, this court does not propose to initiate an inquiry into this factual aspect, which was not raised either before the trial court or before the high court. 21. undeniably, there are some discrepancies and contradictions in the prosecution s case. there is no clarity as to the sequence of events at the scene of offence on the fateful night. witnesses gave differing versions of the time of the arrival of the police and as to what they saw and said. there is no corroboration of pw - 1 s statement that it was pw - 7 who informed him of the accused entering and exiting his house, as pw - 7 said nothing to that effect. further, recovery of the clothes worn by the accused at that time is also shrouded in doubt. one version is that they were still wearing them at the police station and they were seized there by the police, after providing them other clothes, while the other is that a1 handed over blood - stained clothes to pw - 26 along with the bag of ornaments at his house. however, some differences in the testimonies of 17 witnesses as to what they saw and said are to expected given the passage of time. be it noted that the subject incident occurred on the night of 21. 08. 2008 and the depositions of the witnesses were recorded by the trial court in the later part of 2015. in any event, as already noted hereinbefore, this court would not undertake a roving inquiry on factual issues or reappreciate the evidence, unless it is brought out that there is some perversity in appreciation of evidence by the trial court or the high court, leading to manifest miscarriage of justice. trivial defects in investigation or process are not enough, in themselves, to disbelieve the prosecution s case. to acquit solely on the ground of defective investigation would be adding insult to

injury [ see karnel singh vs. state of m. p. { ( 1995 ) 5 scc 518 } ] 22. similarly, identification of the gold ornaments by pw - 1 during the tip does not raise any red flags. order 474 of the andhra pradesh police investigation manual, part i, vol. iia, provides that identification of properties has to be done in the court premises, under the order of the magistrate, either by the magistrate or through independent witnesses, if the properties are already sent to court, and in other cases, independent witnesses should conduct the process of identification of the property in the absence of the police, under a panchnama. the properties to be 18 identified should be mixed with similar articles and the witnesses should be asked to identify them. this being the procedure that was followed in the case on hand, there is no reason to doubt pw - 1 s identification of the seized gold ornaments as those taken from his shop. 23. in this regard, it may also be noted that a2 was found in possession of a bag carrying some of the stolen ornaments and, therefore, such possession itself speaks against him, in terms of section 114 ( a ) of the indian evidence act, 1872. being a fact especially within his knowledge, it was for a2 to explain as to how he came to be in possession of those stolen ornaments, under section 106 of the indian evidence act, 1872. however, no explanation was offered by him. as regards a1, it is the prosecution s case that he confessed to commission of the crime and upon being questioned as to the stolen gold ornaments, he himself went into the other room in his house and brought out a bag containing the gold ornaments. this part of his confession would, therefore, be admissible under section 27 of the indian evidence act, 1872, as it led to the recovery of the stolen gold ornaments. 24. no doubt, recovery of this stolen property from the accused would not be sufficient in itself to convict them for murder. however, the weight of the evidence on record, taken cumulatively, unerringly points to 19 the guilt of the accused, leaving no room for second thoughts. the inescapable fact remains that pws 4, 6, and 10, who were witnesses independent of each other and who had no animosity or enmity with the accused, spoke in unison about seeing them running away from the house of pw

- 1 of the fateful night with bags in their possession. no explanation is forthcoming as to why three separate witnesses would choose to implicate the accused falsely. 25. given the totality of the case, which demonstrates that the sequence of events unfolded in quick succession during the intervening night of 21. 08. 2008 and 22. 08. 2008, leading to not only identification of the accused by the witnesses present but also their apprehension and arrest, apart from seizure of the stolen gold ornaments and cash from their possession, it is amply clear that there was no time or possibility for the police to hoist a false case upon them. minor discrepancies and shortcomings in the statements made by witnesses after passage of a few years would necessarily have to be discounted in such a scenario. 27. viewed thus, we find no patent illegality or manifest injustice having been committed by the trial court and the high court, warranting exercise of discretionary jurisdiction under article 136 of the constitution. 20 the criminal appeal is, therefore, found to be bereft of merit and it is dismissed accordingly.., j ( dinesh maheshwari )., j ( sanjay kumar ) april 21, 2023 new delhi. 21

sanjay kishan kaul, j. 1. leave granted. 2. the appellants herein joined the service as junior engineers in the electricity department of the government of puducherry, having already acquired an engineering degree prior to the appointment to the post of junior engineer. on the other hand, the private respondents joined the service as junior engineers with a diploma and, in the course of service, obtained an engineering degree. signature not verified digitally signed by charanjeet kaur date : 2023. 05. 08 17 : 25 : 36 ist reason : factual background : 3. as per the government of pondicherry, electricity department, group b ( technical ) assistant engineer ( electrical ) recruitment rules, 1979 ( hereinafter referred to as the rules ) for the post of junior engineer, 50 % of the vacancies are to be filled by promotion, and the remaining 50 % are to be filled by direct recruitment. the next avenue of promotion is to the post of assistant engineer ( electrical ). 4. under the said rules, 80 % of the vacancies for the post of assistant engineer are to be filled up by promotion and 20 % by direct recruitment. the promotion is made among junior engineers with three years of regular service for those with a degree in electrical engineering and seven years of regular service for those with only a diploma in electrical engineering. a subsequent amendment dated 07. 10. 1982 was made to rule 4 read with paragraph 11 of the recruitment rules on the subject of promotion. thereafter, the amended rules earmarked 50 % for those junior engineers who possess degree in engineering with regular service of 3 years. the other 50 % was earmarked for those junior engineers who possess diploma with regular service of 7 years. promotion to the post of assistant engineers recruitment for junior engineers : 1. 20 % by direct1. 50 % by promotion recruitment with2. remaining 50 % degree as through direct qualification recruitment 2. 80 % by promotion. 5. significance of the aforesaid is that in order to earn their promotion to the post of assistant engineer, a junior engineer, possessing an engineering degree, has to have fewer years of service while in the case of a diploma holder, the requisite period for service, to be eligible for promotion, was more. we may notice that slp ( c ) no. 20214 - 20216 / 2011 page 3 of 17 while working as a junior engineer, there is no difference between a degree holder and a diploma

holder. the moot point, thus, which arises, is whether, for a diploma holder, who acquires a degree during the course of employment, the period of service as a junior engineer prior to acquiring the degree is to be excluded for computing the eligible period of service for promotion to the post of an assistant engineer. 6. the puducherry administration construed the rules to mean that as long as the diploma holder acquires a degree, the period spent in service as a junior engineer, before the acquisition of an engineering degree, would be counted. the appellants, thus, approached the central administrative tribunal, madras bench ( hereinafter referred to as the cat ) in o. a. no. 355 / 2008, challenging the decision of the puducherry administration to promote the junior engineers, who were originally diploma holders and acquired degree during service, as assistant engineers under the degree quota, immediately after they acquired their degree without insisting on a three - years of continuous service from the date of acquisition of the degree. this was alleged to have resulted in denying promotion to the junior engineers, who joined the service as degree holders. procedural history : before the central administrative tribunal7. the cat, vide an order dated 20. 11. 2009, partly found in favour of the appellants and opined that the qualifying service for junior engineers, who obtained their degree during their service for the purposes of promotion to assistant engineer under the degree quota, would have to be considered from the date when they obtained the degree. this view of the cat was based on shailendra dania & ors. v. s. p. dubey & ors. 1. the cat opined that the rule in question in the present case is almost identical to the rule in the aforesaid case and, thus, concluded that the degree and diploma holders are distinct, and both are entitled to promotion in their respective quota. the cat, in its wisdom, did not consider the case of d. stephen joseph v. union of india & ors. 2 on the ground that the issue requires fresh consideration in view of the subsequent judgment of this court in shailendra dania & ors. 38. the aforesaid view resulted in multiple writ petitions4 being filed before the high court by several employees of the puducherry electricity department, who were affected by the order but were not impleaded as a party before the cat. ( 2007 ) 5 scc 535 2 ( 1997 ) 4 scc

753 3 ( supra ) 4 w. p. no. 26525 of 2009 and w. p. nos. 221 & 7165 of 2010 slp ( c ) no. 20214 - 20216 / 2011 page 5 of 17 arguments before the high court9. in the proceedings before the high court, the two parties relied upon the aforesaid two judgments the appellants on shailendra dania & ors. 5 case while the respondents on d. stephen joseph6 case. shailendra dania & ors. 7 case is undisputedly a latter judgment and pertains to a different rule, albeit it is stated to be almost similar, while d. stephen joseph8 case deals with the very same rules, in question, as in the present case. the submission of the respondents was that in the rules in question, there is nothing stipulated that the experience gained after the acquisition of the degree in electricity engineering was alone to be considered. 10. the high court held in favour of the respondents by allowing the writ petition while relying on the judgment in d. stephen joseph9 case. in this behalf, the judgment in m. b. joshi v. satish kumar pandey10 was also relied upon by the high court, which had been cited in d. stephen joseph11 case qua the aspect of interpretation of service rules. the said case opined that when a rule is quite specific, it would not be proper to count the experience only from the date of acquisition of the superior educational qualification because such an 5 ( supra ) 6 ( supra ) 7 ( supra ) 8 ( supra ) 9 ( supra ) 10 ( 1993 ) supp. ( 2 ) scc 419 11 ( supra ) slp ( c ) no. 20214 - 20216 / 2011 page 6 of 17 interpretation will violate the purpose to incentivise the employee to acquire higher education. the relevant past practice followed by the department being to the same effect, the practice of considering the tenure of a junior engineer as a whole was said to have acquired the status of a rule of the department. simultaneously, it was also observed that since the very rule, in question, had been interpreted by this court, it was not open for the cat to have relied upon the decision qua some other rules. in the context of the two judgments of the supreme court so discussed, it was observed that shailendra dania & ors. 12 case, being the latter judgment of three - judges, had distinguished itself from the earlier judgment in

d. stephen joseph13 case, being the judgment of two - judges, on the true interpretation of that rule, in question. 11. the aforesaid resulted in the special leave petition being filed before this court. initial proceedings before this court12. the two - judges bench of this court, in terms of the order dated 30. 01. 2018, referred the issue to be considered by a larger bench. while making the reference, the two - judges bench opined that d. stephen joseph14 case apparently was not reflecting the correct opinion as while construing almost identical rules, a larger 12 ( supra ) 13 ( supra ) 14 ( supra ) slp ( c ) no. 20214 - 20216 / 2011 page 7 of 17 bench of three - judges had opined to the contrary in shailendra dania & ors. 15 case as also in k. k. dixit & ors. vs. rajasthan housing board & anr. 16, wherein this court had opined that the period of experience must be reckoned from the date of acquisition of the degree. this is how the matter came up before the three - judges bench, as now constituted for our consideration in the reference. the debate before us13. on behalf of the appellants, it was sought to be canvassed that the interpretation of the rule ought to be governed by the two principles : ii. watertight compartments are created for the two classes of employees - the ones with the higher educational qualification requiring lesser number of years of service, and the ones with lesser educational qualification requiring higher number of years of service. this demarcation has a direct nexus with the 15 ( supra ) 16 ( 2015 ) 1 scc 474 slp ( c ) no. 20214 - 20216 / 2011 page 8 of 17 object stated above, and any breach of such demarcation will amount to treating unequal s as equals, thereby defeating the purpose of the rule. 14. it was submitted that the three - judges bench in shailendra dania & ors. 17 case had taken into account the aforementioned principles and had interpreted an almost identical rule. that judgment had been further followed and relied upon by this court in k. k. dixit & ors. 18 case. it was further submitted that the two - judges bench judgment in d. stephen joseph19 case had no precedential value, and it is sub silentio as to the actual text of the rule and the difference in the quality of

service rendered by a degree holder junior engineer vis - - vis a diploma holder junior engineer was neither placed nor covered by this court. that judgment was stated to be completely based only on the arguments of a past practice and not as to the actual meaning and interpretation of the relevant rule. 15. while referring to the rule, it was submitted that the plain and dictionary meaning of the word with is accompanied by. the synonyms in the dictionary are accompanied by, escorted by, alongside, in addition to, as well as. thus, the submission of the appellants was that irrespective of the use of the word with or and, it is a conjunctive phrase and in the light of settled principles, 17 ( supra ) 18 ( supra ) 19 ( supra ) slp ( c ) no. 20214 - 20216 / 2011 page 9 of 17 the requirement of educational qualification and service experience is a cumulative requirement. 16. the appellants contended that they had qualified as junior engineers holding degrees for a much longer period of time than the private respondents, who had entered the service only as junior engineers holding diplomas and actually earned their promotions almost immediately once they acquired their degrees by coming into the degree quota. this was stated to permit the private respondents to infiltrate into the quota meant for the degree holders based on a wrong interpretation of the rule and relying on the earlier judgment of this court in the case of d. stephen joseph20. 17. on the other hand, it was urged on behalf of the respondents while commending the view taken in d. stephen joseph s21 case that the view in that case and shailendra dania & ors. 22 case is really not in variance. the rule was stated to be different. apart from that, observations made in shailendra dania & ors. 23 case, which would show that the view taken in d. stephen joseph24 case has not been faulted. a reference was also made to two other judicial pronouncements of this court in anil kumar gupta v. municipal corporation of delhi25 and chandravathi p. k. & ors. v. c. k. saji & 20 ( supra ) 21 ( supra ) 22 ( supra ) 23 ( supra ) 24 ( supra ) 25 ( 2000 ) 1 scc 128 slp ( c ) no. 20214 - 20216 / 2011 page 10 of 17 ors. 26, which had also endorsed the view taken in d. stephen joseph

##27case and, thus, that case cannot be said to be a sub silentio. these two judgments are once again of a three - judges bench, and the latter judgment had set down the principles to be followed as regards the counting of the service period of diploma holders. 18. the effect of the aforesaid pronouncements was stated to be that in case of the electricity department of the union territory of puducherry, the principle that has emerged in respect of the rules is that for the purpose of the eligibility for promotion as assistant engineer, diploma holders can count their service prior to the acquisition of their degree. analysis of the aforesaid judgments and our view : 19. on examining the controversy in the context of the arguments urged and the judicial precedents, we can say that actually, the issue is no more res integra in view of the judgment of this court in c. chakkaravarthy & ors. v. m. satyavathy, ias & ors. 28 though it is a two - judges bench view, the very issue has been examined, which is really sought to be debated before us. it was observed in para 10 as under : discriminatory. as between the date of acquiring eligibility and the date of entering service as a section officer / junior engineer the latter was, in our opinion, a more intelligible, fair and reasonable yardstick to be applied for drawing - up the list of eligible candidates by the review dpc. inasmuch as the review dpc relied upon the date of acquiring eligibility as the basis for slp ( c ) no. 20214 - 20216 / 2011 page 12 of 17 preparation of the list of eligible candidates, it committed a mistake which needs to be corrected. 20. a reading of the aforesaid paragraph shows that the promotion to the post of assistant engineer was to be based on merit and merit alone. the seniority of candidates could not be taken into account for determining such merit. in this merit - based selection, there was a qualifying prescription to be so considered on merits. the time period spent in the service as junior engineer was at variance dependent on whether the person had a qualifying degree or a qualifying diploma. there was no necessity for a degree to perform the job of a junior engineer, and all persons were alike. the distinction only came into play when the merit - based promotion had to take effect. thus, as to when the person obtained the degree as a method of advancement

of his knowledge and entitling him to an earlier consideration in the time period would not be relevant. 21. the department of personnel and training, instructions and guidelines on seniority, have been placed before us. as far as the seniority of promotees is concerned, the relevant portion is as under : 2. 2. seniority of promotees......... 2. 2. 1 where promotions to a grade are made from more than one grade and quotas have been laid down for each feeder grade, the eligible persons shall be arranged in separate lists in the order of their relative seniority in their respective grades. the officers in each grade, assessed as fit by the departmental promotion committee shall be interpolated in the ratio prescribed for each grade in the recruitment rules for the post. 22. a three judges bench of this court in chandravathi p. k. & ors. 29 referred to a number of earlier judgments on the issue, including d. stephen joseph30, satpal antil v. union of india31, anil kumar gupta32, a. k. raghumani singh v. gopal chandra nath33 and pramod k. pankaj v. state of bihar34 and quoted with approval of the last of these judgments. the principle laid down is that in the absence of any statutory provision or rule made thereunder or under the proviso appended to article 309 of the constitution of india, once an incumbent is appointed to the post according to rules, their seniority has to be counted from the date of appointment. 23. in shailendra dania & ors. 35 case, it was noticed in para 36 that the past practice would be a relevant aspect while 29 ( supra ) 30 ( supra ) 31 ( 1995 ) 4 scc 419 32 ( supra ) 33 ( 2000 ) 4 scc 30 34 ( 2004 ) 3 scc 723 35 ( supra ) slp ( c ) no. 20214 - 20216 / 2011 page 14 of 17 construing the service rule. the aforementioned judgment distinguished itself from d. stephen joseph36 case on the ground that the interpretation of the rules would be determined on a case - to - case basis, and the wordings of the rules as well as past practices are important criteria. similarly, in the present case, the electricity department has a past practice of considering the years of service prior to the acquisition of the degree. 24. the principle of past practice being

of significance has also been noticed in m. b. joshi37 case. this judgment also discusses the aspect where there are two channels for promotion ( as in the present case ) and illustrates that if the total time period of service was not to be counted, then there could not be said to be any incentive to acquire the higher degree except as an academic pursuit. the incentive is that if you acquire a higher degree as compared to a diploma, you come into a channel which entitles consideration, albeit on merit, in a fast lane with less number of years of service required in the cadre. 25. in our view, one of the important aspects is the wording of the rule itself. according to the rules, 50 percent of the promotion quota is from junior engineers with three years of regular service in the grade and possessing a degree in 36 ( supra ) 37 ( supra ) slp ( c ) no. 20214 - 20216 / 2011 page 15 of 17 electrical engineering. the rule does not say from which date the time period of regular service has to be counted, but there is a twin requirement of three years of regular service as also a degree. as against this, the second scheme of 50 percent promotion from junior engineers uses the word with seven years of regular service in the grade and possessing a diploma in electrical engineering. thus, the distinction is between the diploma holder and the degree holder and the period of service rendered as a junior engineer without any distinction between the years served prior to or after having obtained the degree. accepting the plea of the appellant would amount to insertion into the requirement of the rules, which is not stipulated. further, this is how the rule has been understood by the department, the framers of the rules, and accordingly, the rules have been uniformly implemented in the electricity department over a period of time. in view of the above, due weightage must be given to the view of the framers of the rules. conclusion : 26. in view of the aforesaid, we uphold the view taken by the high court opining that there is no distinction between the time period served before or after the acquisition of the degree so long as the degree is acquired and is the basis for consideration of the promotion. we are, thus, of the view that for all the aforesaid reasons for the department in question, the view taken in d. stephen joseph38 is held to be applicable law, and we answer the reference accordingly. 27. the appeals are accordingly dismissed

.................... j. [ sanjay kishan kaul ]................... j. [ abhay s. oka ]................... j. [ manoj misra ] new delhi. may 08, 2023. ( supra ) slp ( c ) no. 20214 - 20216 / 2011 page 17 of 17

surya kant, j. leave granted. 2. the instant criminal appeal originates from a judgment dated 27. 01. 2020 whereby the high court of punjab and haryana at chandigarh ( in short high court ), while setting aside the order dated 12. 07. 2018 passed by the additional sessions judge, nuh, has ordered the summoning of the appellants under section 319 of the code of criminal procedure, 1973 ( hereinafter cr. p. c. ) as additional accused. a. facts3. briefly stated the facts are that fir no. 270 dated 09. 07. 2017 signature not verified digitally signed by satish kumar yadav date : 2023. 02. 21 16 : 51 : 59 ist was registered at police station tauru, district nuh under reason : sections 304b, 498a, 406, 323 and 34 of the indian penal code, 1860 ( hereinafter ipc ) on the statement of karim respondent no. 1 to the effect that the marriage of his deceased sister ( rukseena ) was solemnised on 04. 12. 2016 with one aamir. an alto car, rs. 3 lakhs in cash, 3 kg of silver, 30 grams of gold, furniture and other household items were allegedly given to aamir and his family members as dowry at the time of marriage. the family of aamir comprised of akhlima ( mother ), juhru ( father ) appellant no. 1, sonam ( sister ) appellant no. 2 and rijwan ( brother in law ) appellant no. 3. the complainant further alleged that the family of aamir was dissatisfied with the dowry and subjected the deceased to continuous torture and harassment. respondent no. 1 and his family tried to settle the matter with aamir and his family but all their efforts proved futile. respondent no. 1 was telephonically informed on 09. 07. 2017 that the deceased had hung herself to death. 4. the investigating agency did not find any incriminating material against the appellants in the course of investigation and challan was filed only against the husband and the mother in law of the deceased, who are now facing trial. 5. during the trial, respondent no. 1 stepped into the witness box as pw 1 on 01. 03. 2018 and reiterated the allegations levelled page | 2 against all the accused persons, including the appellants. soon thereafter, respondent no. 1 filed an application under section 319

cr. p. c before the trial court to summon the appellants as additional accused. 6. the trial court dismissed the said application observing that the extraordinary power vested under section 319 cr. p. c ought to be exercised only if the evidence adduced on record strongly indicates the possible involvement of the person ( s ) aimed to be prosecuted. the trial court further opined that it did not appear from the deposition of respondent no. 1 or from other material on record that the persons sought to be summoned had committed any offence for which they could be tried together with accused aamir and akhlima. 7. the aggrieved respondent no. 1, approached the high court under section 482, cr. p. c. and vide impugned order dated 27. 01. 2020 his petition was allowed and the appellants were summoned to face trial. the high court observed that the fir as well as the testimony of respondent no. 1 during the trial revealed that the insinuations against the appellants were exactly the same as those attributed to the accused already facing trial. hence, in the absence of any distinguishable features, the appellants were also liable to be tried along with page | 3 aamir and akhlima. the high court further viewed that there existed sufficient grounds for summoning the appellants as additional accused. 8. discontented with their summoning by the high court, the appellants are before us. b. contentions9. mr. s. k. verma, learned counsel for the appellants, vehemently contended that the high court has committed a grave error of law in not appreciating that the powers under section 319 cr. p. c. are to be exercised sparingly only if the evidence vividly points out the possible involvement of the person ( s ) proposed to be prosecuted. there is not an iota of evidence against the appellants to glean a conclusion of their involvement. further, the fact that the appellants were found innocent during the course of two fold investigation has not been adequately considered by the high court. there is no evidence to suggest even remotely that the appellants were cruel to the deceased shortly before her death. the allegations are general and vague in nature without attributing any specific role to the appellants. 10. on the other hand, mr. deepkaran dalal, learned counsel for the ist respondent, strongly defended the approach of the high court and submitted that, given the allegations made in the fir page | 4 and the deposition of respondent no

. 1, the high court was justified in summoning the appellants, who were actively involved in harassing the deceased for not bringing enough dowry and which eventually led to the unfortunate death of rukseena just within 7 months of her marriage. c. analysis11. there is no gainsaid that the alleged offence is grave and heinous in nature. the long arms of law must find out whether any person is guilty of abetting or taking away the precious life of a young girl who soon after her marriage met with such a tragic end. however, the only issue that falls for our consideration is whether there is sufficient evidence against the appellants to summon them as additional accused? 12. section 319 cr. p. c. contemplates that : 13. illuminating the scope of section 319 cr. pc, the constitution bench of this court in hardeep singh vs. state of punjab1 laid down that : 1 ( 2014 ) 3 scc 92 page | 5 57. thus, the application of the provisions of section 319 crpc, at the stage of inquiry is to be understood in its correct perspective. the power under section 319 crpc can be exercised only on the basis of the evidence adduced before the court during a trial. so far as its application during the course of inquiry is concerned, it remains limited as referred to herein above, adding a person as an accused, whose name has been mentioned in column 2 of the charge sheet or any other person who might be an accomplice. x x x x x 105. power under section 319 crpc is a discretionary and an extraordinary power. it is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. it is not to be exercised because the magistrate or the sessions judge is of the opinion that some other person may also be guilty of committing that offence. only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 106. thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross examination, it requires much stronger evidence than mere probability of his complicity. the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to

conviction. in the absence of such satisfaction, the court should refrain from exercising power under section 319 crpc. in section 319 crpc the purpose of providing if it appears from the evidence that any person not being the accused has committed any offence is clear from page | 6 the words for which such person could be tried together with the accused. the words used are not for which such person could be convicted. there is, therefore, no scope for the court acting under section 319 crpc to form any opinion as to the guilt of the accused. 14. this court has very recently, in sukhpal singh khaira vs. the state of punjab2, succinctly explained the powers bestowed on the court under section 319 cr. p. c. and ruled that : 15. at the outset, having noted the provision, it is amply clear that the power bestowed on the court is to the effect that in the course of an inquiry into, or trial of an offence, based on the evidence tendered before the court, if it appears to the court that such evidence points to any person other than the accused who are being tried before the court to have committed any offence and such accused has been excluded in the charge sheet or in the process of trial till such time could still be summoned and tried together with the accused for the offence which appears to have been committed by such persons summoned as additional accused. 15. in hardeep singh ( supra ), it has been eloquently held that the word evidence in section 319 cr. p. c. has to be broadly understood and thus materials which have come before the court in course of enquiry can be used for : ( i ) corroboration of evidence recorded by court after commencement of trial ; ( ii ) for exercise of power under section 319 cr. p. c. ; and 2 ( 2023 ) 1 scc 289 page | 7 ( iii ) also to add an accused whose name is shown in column no. 2 of the chargesheet. it was further explained that statement made in examination in chief also constitutes evidence and the court while exercising power under section 319 cr. p. c. post commencement of trial, need not wait for evidence against person proposed to be summoned, to be tested by cross examination. 16. in sukhpal singh khaira ( supra ), the constitution bench refreshed the guidelines that the competent court must follow while exercising power under section 319 cr. p. c. it was ruled that : (

i ) if the competent court finds evidence or if application under section 319 cr. p. c. is filed, regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage and the court shall proceed to decide the fate of the application under section 319 cr. p. c. ; ( ii ) if the court decides to summon an accused under section 319 cr. p. c., such summoning order shall be passed before proceeding further with the trial in the main case and depending upon the stage at which the order is passed, the page | 8 trial court shall apply its mind to the fact as to whether such summoned accused is to be tried along with other accused or separately ; and ( iii ) if the power under section 319 cr. p. c. is not invoked or exercised in the main trial till its conclusion and if there is a split up case, such power can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the spilt up ( bifurcated trial ). 17. it is, thus, manifested from a conjoint reading of the cited decisions that power of summoning under section 319 cr. p. c. is not to be exercised routinely and the existence of more than a prima facie case is sine quo non to summon an additional accused. we may hasten to add that with a view to prevent the frequent misuse of power to summon additional accused under section 319 cr. p. c., and in conformity with the binding judicial dictums referred to above, the procedural safeguard can be that ordinarily the summoning of a person at the very threshold of the trial may be discouraged and the trial court must evaluate the evidence against the persons sought to be summoned and then adjudge whether such material is, more or less, carry the same weightage and value as has been testified against those page | 9 who are already facing trial. in the absence of any credible evidence, the power under section 319 cr. p. c. ought not to be invoked. 18. adverting to the case in hand, the allegations against the appellants are that they too played an active role in the commission of the alleged offence. 19. the record reveals that after the application under section 319 cr. p. c was dismissed by the trial court, respondent no. 1 was called on 06. 12

. 2018 for further examination in chief as pw 1. his deposition distinctively unravels that at the time of marriage, appellant no. 1 juhru ( father in law ) had asked respondent no. 1 to spend a sum of rs. 20 lacs on the marriage of aamir and the deceased, to which respondent no. 1 had agreed. appellant no. 1 and his wife akhlima ( mother in law ) were living under the same roof as his son aamir ( husband ) and he would have been privy to all the alleged occurrences of torture, harassment or demand for more dowry. viewed from this angle, it appears that the ist appellant might have to sink or swim with his son and wife. the high court order, to the extent of summoning appellant no. 1, therefore, satisfies the ingredients of section 319 cr. p. c. and may not warrant any interference by this court. page | 1020. as regard to appellant nos. 2 and 3, i. e., sonam ( sister in law ), and rijwan ( brother in law ) of the deceased, it appears to us that despite both of them being named in the fir and in the examination in chief of respondent no. 1, there is no credible evidence to connect them with the unnatural death of rukseena. there is no cogent material that appellant no. 2, even after her marriage with appellant no. 3, continued to reside in her parents house or that they used to inter meddle in the day to day marital life of the deceased and aamir. in the absence of any authentic evidence to bring them in close proximity of the reported crime, it would be unjustified to call upon appellant nos. 2 and 3 to face trial as additional accused in this case. d. conclusion : 21. in light of above discussion, we are of the considered view that while summoning of appellant no. 1 sustains, but that of appellant nos. 2 and 3 will be farfetched and they cannot be subjected to trial on the basis of mere strong suspicion. the high court order under challenge is accordingly set aside qua appellant nos. 2 and 3. 22. having held that appellant no. 1 has been rightly summoned and is liable to be tried along with his son and wife, the next question page | 11 that requires consideration is as to the manner in which the trial will proceed hitherto. 23

. the information available on record suggests that the trial is at the stage of defence evidence. the guidelines that the trial court must follow, while commencing the trial against appellant no. 1 have been extensively iterated by the constitution bench in sukhpal singh khaira ( supra ), in the following terms : 41 ( iii ). what are the guidelines that the competent court must follow while exercising power under section 319 crpc? 41. 1 if the competent court finds evidence or if application under section 319 of crpc is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage. 41. 2 the court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon. 41. 3 if the decision of the court is to exercise the power under section 319 of crpc and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case. 41. 4 if the summoning order of additional accused is passed, depending on the stage at which it is passed, the court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately. page | 12 41. 5 if the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused. 41. 6 if the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the court to continue and conclude the trial against the accused who were being proceeded with. 24. the trial court shall, thus, follow the cited dictum and proceed against appellant no. 1 in accordance with law. 25. for the reasons aforestated but without expressing any views on merits, we partly allow this appeal and modify the impugned order of the high court dated 27. 01. 2020 in above terms. 26. pending applications, if any, stand disposed of... j. ( surya kant )... j. ( j. k. maheshwari ) new delhi dated : 21. 02. 2023 page | 13

a. s. bopanna, j. 1. leave granted. 2. the appellant is assailing the judgment dated 12. 02. 2019 passed by the high court of andhra pradesh at signature not verified digitally signed by amravati in criminal petition no. 12675 of 2018 and nisha khulbey date : 2023. 09. 06 16 : 41 : 30 ist reason : analogous petitions. through the judgment, the high court page 1 while allowing the petitions before it, quashed the criminal proceedings against respondent no. 2, being c. c. no. 681 of 2017 and analogous complaints on the file of ii additional chief metropolitan magistrate at visakhapatnam. the appellant is the complainant in cc no. 681 of 2017 and the other complaints, filed against the accused respondent no. 2 under section 138 and 142 of the negotiable instruments act ( ni act for short ). the appellant is therefore before this court claiming to be aggrieved by the said judgment. 3. the brief facts of the case as narrated in the first of the above appeal are that the appellant and respondent no. 2 are known to each other. due to their acquaintance respondent no. 2 approached the appellant to borrow a sum of rs 20, 00, 000 / - stating that he required the amount to finance his son s higher education to study medicine and for domestic expenses. in order to assure the re - payment, respondent no. 2 executed a promissory note on 25. 07. 2012 wherein it was agreed that the amount was to be repaid in full and along with interest at 2 % per month. there was a page 2 condition in the promissory note that the full and final payment will be made by december, 2016. the respondent no. 2 failed to comply with the condition in the promissory note but on 28. 04. 2017 issued a cheque bearing no. 548045 drawn on the vijaya bank, j. p. marg, visakhapatnam for a sum of rs. 10, 00, 000 / - towards partial discharge of the debt. the cheque when presented for collection was returned by the bank on 15. 05. 2017 due to insufficient funds to honour the cheque. the appellant got issued a legal notice dated 24. 05. 2017 to respondent no. 2, which was replied to by respondent no. 2 on 01. 06. 2017. the appellant sent a rejoinder to the said reply on 03. 06. 2017. respondent

no. 2 sent a reply to the said rejoinder on 07. 06. 2017. the appellant thereafter filed complaints under section 138 of the ni act on 11. 07. 2017 before the special magistrate, vishakhapatnam vide cc no. 681 of 2017 and analogous complaints. the learned special magistrate in accordance with law, took cognizance of the complaint under section 138 of ni act against the respondent no. 2 - page 3 accused vide order dated 14. 09. 2018 and ordered the issue of summons. 4. the fact situation in the analogous appeals is also similar except for the date of the promissory note and the date of the cheque. however, in all the promissory notes the period for repayment indicated is the same and all other facts arising for consideration are similar. hence for the purpose of narration and consideration of the law, the facts relating to the appeal arising out of slp ( crl. ) no. 7455 of 2019 is referred herein. 5. the respondent no. 2 herein however filed the petition in crl. p no. 12675 of 2018 and analogous petitions under section 482 of the criminal procedure code, 1973 ( for short crpc ) before the high court praying to quash proceedings under cc no. 681 of 2017 and analogous complaints. the high court allowed the petitions filed under section 482 crpc by respondent no. 2 herein, noting various judgments by this court and the various high courts, and observing that the limitation for enforcing the promissory notes had page 4 expired much prior to the issuance of the cheques in question. as such, it was held this was a fit case for quashing since the complaint filed seeking prosecution was not in respect of a legally recoverable debt. 6. mr. sanchit garga, learned counsel appearing on behalf of the appellant while assailing the judgment passed by the high court, would contend that the high court did not appreciate that the promissory note executed by respondent no. 2 has the binding effect of a contract and hence the complaint under section 138 of ni act is maintainable when a cheque is drawn to pay wholly or in part, a debt which is enforceable and there is no bar of limitation. the cheque amounts to a promise governed by section 25 ( 3 ) of the indian contract act, 1872. such promise which is an agreement is an exception to the general rule that an agreement without consideration is void. though on the date of making such promise by issuing a cheque, the debt

which is promised to be paid, even if is time - barred is a legally recoverable one. in view of section 25 ( 3 ) of the indian contract act, the promise / agreement is valid and page 5 therefore the same is enforceable. the learned counsel for the appellant has argued on the principle that the limitation act only bars the remedy and not the right of a party. he has relied upon the decision of this court in s. natarajan v. sama dharman, ( 2021 ) 6 scc 413 and a. v. murthy v. b. s. nagabasavanna, ( 2002 ) 2 scc 642. 7. mr. sidharth luthra, learned senior counsel appearing as amicus curiae on behalf of respondent no. 2 accused who has failed to appear despite service of notice, would however seek to sustain the judgment passed by the high court. the learned amicus curiae has fairly put on record a compilation showcasing the different view taken by various high courts, as well as the position of law stated by this court. it is contended that the earlier view while considering that the presumption under section 139 ni act will apply, did not consider the scope in a criminal trial and the bearing that section 322 of crpc would have in the light of the decision in expeditious trial of cases under section 138 of ni act 1881, ( 2021 ) scc online sc 325 and thus did not consider the jurisdictional fact for invoking page 6 section 138 ni act. it is further contended that the debt being time - barred was not a legally enforceable debt and where a debt is barred by law such debt or liability based on a void contract is against public policy and ni act cannot apply in such cases. in order to attract section 25 ( 3 ) of the indian contract act, an express promise made in writing and signed by the person is required is his contention. 8. at the threshold it would be apposite to take note of the decisions referred to by the learned counsel for the petitioner so as to place in perspective the scope of consideration in a petition filed under section 482 of crpc seeking quashment of a complaint filed under section 138 of ni act, more so keeping in view the presumption as incorporated under section 139 of the ni act. as noted, the learned counsel has relied on the decision in the case of s. natarajan vs. sama dharman & anr. ( 2021 ) 6 scc 413 wherein it is held as

hereunder : 9. the learned counsel has further referred to the decision in the case of a. v. murthy vs. b. s. page 8 nagabasavanna ( 2002 ) 2 scc 642 wherein it is held as hereunder : moreover, in the instant case, the appellant has submitted before us that the respondent, in his balance sheet prepared for every year subsequent to the loan advanced by the appellant, had shown the amount as deposits from friends. a copy of the balance sheet as on 31 - 3 - 1997 is also produced before us. if the amount borrowed by the respondent is shown in the balance sheet, it may amount to acknowledgment and the creditor might have a page 9 fresh period of limitation from the date on which the acknowledgment was made. however, we do not express any final opinion on all these aspects, as these are matters to be agitated before the magistrate by way of defence of the respondent. 6. this is not a case where the cheque was drawn in respect of a debt or liability, which was completely barred from being enforced under law. if for example, the cheque was drawn in respect of a debt or liability payable under a wagering contract, it could have been said that that debt or liability is not legally enforceable as it is a claim, which is prohibited under law. this case is not a case of that type. but we are certain that at this stage of the proceedings, to say that the cheque drawn by the respondent was in respect of a debt or liability, which was not legally enforceable, was clearly illegal and erroneous. 10. from a perusal of the legal position enunciated, it is crystal clear that this court keeping in perspective the nature of the proceedings arising under the ni act and also keeping in view that the cheque itself is a promise to pay even if the debt is barred by time has in that circumstance kept in view the provision contained in section 25 ( 3 ) of the contract act and has indicated that if the question as to whether the debt or liability being barred by limitation was an issue to be considered in such proceedings, the same is page 10 to be decided based on the evidence to be adduced by the parties since the question of limitation is a mixed question of law and fact. it is only in cases wherein an amount which is out and out non - recoverable, towards which a cheque is issued, dishonoured and for recovery of which a criminal action is initiated, the question of threshold jurisdiction will arise. in such cases, the court

exercising jurisdiction under section 482 crpc will be justified in interfering but not otherwise. in that light, this court was of the view that entertaining a petition under section 482 crpc to quash the proceedings at the stage earlier to the evidence would not be justified. 11. notwithstanding the above, the learned amicus curiae would submit that the decisions referred to hereinabove would have to be viewed differently keeping in view the subsequent decision of a constitution bench of this court in the case of the expeditious trial of cases under section 138 of ni act, 2021 scc online sc 325 to contend that in the said decision the power of the magistrate under section 322 of crpc being an aspect to be page 11 taken into consideration was considered. in a case where the trial court is informed that it lacks jurisdiction to issue process for complaints under section 138 of the act the proceedings will have to be stayed in such cases. hence, it is contended that the power of the trial court to decide with regard to its jurisdiction is not taken away and in that circumstance exercise of power under section 482 crpc by the high court would be justified. it is further contended by the learned amicus curiae that even the position under section 25 ( 3 ) of the contract act being applicable to criminal proceedings for dishonour of cheque will have to be examined in the background of the provision contained in the explanation to section 138 of ni act which specifies that the debt or other liability enforceable would be only a legally enforceable debt or other liability. in such circumstances if the cheque is issued in respect of the debt which is not enforceable or a liability which cannot be recovered, in such event, the presumption under section 139 of ni act would not be available. page 1212. having referred to the judgments cited, prima facie we are of the opinion that the decision in s. natarajan and a. v. murthy ( supra ) has taken into consideration all aspects. no other elaboration is required even if the observations contained in the case of expeditious trial of cases under section 138 of ni act ( supra ) is taken note, since, whether the debt in question is a legally enforceable debt or other liability would arise on the facts and circumstance of each case and in that light the question as to whether the power under section 482 crpc is to be exercised or not will also arise in the facts of such case. even otherwise we do not see the need to tread that path to undertake an academic exercise on that aspect of the matter, since from the very facts

involved in the case on hand ex facie it indicates that the claim which was made in the complaint before the trial court based on the cheque which was dishonoured cannot be construed as time - barred and as such it cannot be classified as a debt which was not legally recoverable, the details of which we would advert to here below. in that view, we have chosen not to refer to the page 13 cases provided as a compilation as it would be unnecessary to refer to the same. 13. in that regard the perusal of the impugned judgment would disclose that the very narration as contained in para 4 of the impugned order would indicate that the consideration therein was predicated only on two facts as noted by the high court, ( i ) that the promissory notes are of the year 2012, ( ii ) that the cheques are issued in the year 2017. it is in that light the high court has indicated that the date of issuance of the cheque is beyond three years from the date of issuance of the promissory note so as to classify it as a time - barred debt. in this regard, on perusal of the records we note that the high court has in fact misdirected itself, has proceeded at a tangent and has therefore erred in its conclusion. 14. as already noted, the facts are almost similar in all four cases and as such for the purpose of narration a perusal of the promissory note dated 25. 07. 2012 ( annexure p / 1 ) would inter alia record as follows : page 14.. hereby admit to have availed a loan amount shown above for the purpose of meeting my own family expenses and for higher education of my children by collecting the cash amount of rs. 20, 00, 000 / - ( in words : rupees twenty lakhs only ) for which i do hereby further agree to pay a monthly interest of rs. 2 / - ( in words : rupees two only ) per month and fully understand hereby that i am bound by virtue of the promissory to repay the capital or principal loan amount as well as the agreed payable monthly interest amount within the date of december 2016 by ensuring the total payment to you or any of your assignees as directed by you by taking the payable amount to your home and pay it there... ( emphasis supplied ) 15. a perusal of the above - extracted and emphasised portion would indicate that the promise is to repay the principal amount with the interest accrued within december, 2016.

hence, when the respondent had agreed to repay the amount within december, 2016, the cause of action to initiate proceedings to recover the said amount if not paid within december 2016 would arise only in the month of december, 2016. in that light, the limitation would be as provided under article 34 to the schedule in page 15 the limitation act, 1963. for the purpose of easy reference, the same is extracted here below : 16. the provision would indicate that in respect of a promissory note payable at a fixed time, the period of limitation being three years would begin to run when the fixed time expires. therefore, in the instant case, the time would begin to run from the month of december, 2016 and the period of limitation would expire at the end of three years thereto i. e. during december, 2019. in that light, the cheque issued for rs. 10, 00, 000 / - which is the subject matter herein is dated 28. 04. 2017 which is well within the period of limitation. the complaint in cc no. 681 of 2017 was filed in the court of the chief metropolitan magistrate on 11. 07. 2017. so is the case in the analogous complaints. therefore, in the instant case not only the amount was a legally recoverable debt which is evident on the face of it, the complaint was also filed within time. hence there was no occasion whatsoever in the instant case to exercise the power under section 482 to quash the complaint. in that view, the order impugned dated 12. 02. 2019 passed by the page 17 high court in criminal petition nos. 12652, 12670, 12675, and 12676 of 2018 is not sustainable. 17. the order impugned is accordingly set aside. 18. the complaints bearing cc no. 681 of 2018, cc no. 644 of 2018, cc no. 250 of 2018, and cc no. 254 of 2018 are restored to the file of the chief metropolitan magistrate, visakhapatnam. keeping in view that the matter has been pending from the year 2017, the trial court shall now proceed with the matters as expeditiously as possible but in any event shall dispose of the matter within six months from the date on which a copy of this judgment is furnished. 19. before parting with the matter, we would like to place on record and command the usual, able assistance rendered by mr. sidharth luthra, learned senior counsel as amicus curiae in the absence of respondent, in guiding this court to arrive at its conclusion. page

1820. the appeals are accordingly allowed with no order as to costs. 21. pending application, if any, shall stand disposed of..... j. ( a. s. bopanna )...... j. ( prashant kumar mishra ) new delhi, september 06, 2023 page 19

rajesh bindal, j. 1. the appellant, who was husband of the deceased, has filed the present appeal challenging his conviction and sentence under sections 304b, 498a and 201 of indian penal code, 1860 ( for short, ipc ). the trial court had sentenced the appellant to undergo rigorous imprisonment for 10 years under section 304b, 2 years under section 498a and 2 years under section 201 ipc. however, the high court of uttarakhand at nainital had reduced the sentence of the appellant under section 304b ipc from ten years to seven years. signature not verified digitally signed by anita malhotra date : 2023. 04. 20 16 : 49 : 17 ist reason : page 1 of 19 criminal appeal no. 447 of 20122. the appellant and deceased chhilo kaur got married in the year 1993. the deceased was residing in her matrimonial home. on 24. 6. 1995 at 6. 15 p. m. father of the deceased, pratap singh ( pw - 1 ) filed complaint with the p. s. jaspur stating that his daughter chhilo kaur was married to the appellant about two years ago. in the marriage, he had given sufficient dowry as per his status. two months after the marriage, his daughter came to her parental home and told the complainant ( pw - 1 ) that her in - laws are asking her to bring a motorcycle as the same was not given in dowry. the complainant pacified his daughter stating that at present he is not capable of giving motorcycle, however, whenever he is in a position to do so, he will certainly give and sent his daughter back to her matrimonial home. thereafter, whenever his daughter came to the parental home, she used to talk about the demand of motorcycle and subsequently after about one year of marriage, the demand for land was also made. every time he used to pacify his daughter and sent her back. on the previous day i. e. on 23. 6. 1995, one jagir singh of village bhogpur dam, where his daughter lived after marriage with the appellant came to complainant and told him that his daughter, page 2 of 19 criminal appeal no. 447 of 2012 chhilo kaur has been murdered by her in - laws. on getting the information, the complainant along with his wife came to village bhogpur dam on 24. 6. 1995 and were shocked to know that

on 22. 6. 1995 in the morning at about 8. 00 a. m., his daughter was beaten up and strangulated to death by her husband charan singh, ( the appellant herein ), brother - in - law, gurmeet singh ( accused no. 2 ) and mother - in - law santo kaur ( accused no. 3 ). they had cremated the dead body without even informing the complainant. she was killed on account of non - fulfilment of demand of motorbike and land in dowry. the matter was investigated and chargesheet was filed against charan singh, gurmeet singh and santo kaur. 3. the prosecution examined six witnesses and defence examined one witness. the trial court, after evaluating the evidence, convicted charan singh ( appellant ), gurmeet singh and santo kaur under sections 304b, 498a and 201 ipc and sentenced them to undergo rigorous imprisonment for ten years u / s 304b ipc, rigorous imprisonment for two years u / s 498a ipc and rigorous imprisonment for two years u / s 201 ipc. in appeal filed by the convicts before the high court, the conviction and sentence of gurmeet singh ( brother - in - law ) and page 3 of 19 criminal appeal no. 447 of 2012 santo kaur ( mother - in - law ) under section 304b, 498a and 201 ipc were set aside and they were acquitted of the charges, whereas the conviction of the appellant was upheld. however, the sentence of rigorous imprisonment of ten years under section 304b ipc, awarded to the appellant was reduced to seven years. it is the aforesaid judgment of the high court which is under challenge in the present appeal. 4. mr. shubhranshu padhi, learned counsel who was requested to assist the court as an amicus curiae on account of absence of the counsel who filed the appeal, submitted that the conviction and sentence of the appellant cannot be legally sustained either under sections 304b or 498a ipc. the pre - requisites for raising presumption under section 304b ipc is that soon before the death, the deceased had been subjected to cruelty or harassment for or in connection with any demand of dowry. the presumption in regard to dowry death can be raised in terms of section 113b of the indian evidence act, 1872 ( for short, iea ) only if it is shown that soon before death, such woman had been subjected to cruelty or harassment for, or

in connection with the demand of dowry. page 4 of 19 criminal appeal no. 447 of 20125. if the evidence led by the prosecution is examined, no case for conviction under section 304b or 498a ipc can possibly be made out as none of the witnesses have stated that there was any harassment or cruelty to the deceased or demand of dowry immediately before her death. the marriage took place in the year 1993, the deceased died on 22. 6. 1995. none of the family members of the deceased including her father, maternal grandmother or the maternal uncle have stated anything about the harassment of the deceased immediately before her death in connection with demand of dowry. in fact, the maternal grandmother and two maternal uncles who were living at distance of about one farlang from the village of the deceased were even present at the time of her cremation. they did not raise any issue either by lodging a complaint to the police or otherwise. in fact, it was admitted by the maternal grandmother and the uncles of the deceased that after the cremation, with the intervention of the panchayat, they had collected all the dowry articles. it was further submitted that intimation was also given to the father of the deceased who in fact was living at a distance of about 290 kms. page 5 of 19 criminal appeal no. 447 of 2012 however, the cremation could not be delayed on account of waiting for the arrival of the father of the deceased. 6. it was further argued that one material witness, jagir singh, who was named by the complainant in the fir, has not been produced by the prosecution in evidence. he is the person who according to the complainant is a resident of village bhogpur dam, where the deceased used to live in her matrimonial home. he had informed the complainant about the death of his daughter. why this material witness was withheld by the prosecution? as per the statement of the i. o. babban singh, who appeared as pw - 6, during investigation the statement of jagir singh was recorded. once the ingredients of sections 304b, 498a ipc and section 113b of iea are not made out, no presumption of dowry death can be raised. in support of the arguments, reliance was placed on baijnath v. state of m. p1. it was further argued that the allegations against the appellant, his brother and mother were same. however, against acquittal of his

brother and mother, no appeal has been preferred by the state and death of the wife of the appellant was not unnatural as she was suffering from fits. in her cross - 1 ( 2017 ) 1 scc 101 page 6 of 19 criminal appeal no. 447 of 2012 examination, the maternal grandmother admitted that the deceased had fits. 7. on the other hand, learned counsel for the state submitted that it is a case in which a young woman was killed by her in - laws in lust for dowry. the marriage was merely two years old and the death was unnatural. the deceased was cremated without even informing her parents. the maternal grandmother and the two uncles who were present at the time of cremation had seen injury marks on the body of the deceased and also the broken tooth. they could not lodge the complaint as they were threatened. the death occurred in the matrimonial home, hence onus lies heavily on the appellant to dislodge the presumption. there is sufficient material on record in the form of statements of witnesses produced by the prosecution that there was repeated demand for dowry by the appellant. there is no error in the judgment of the high court. sufficient indulgence has already been shown by the high court by reducing the sentence of the appellant from ten years to minimum seven years as provided under section 304b of the ipc. page 7 of 19 criminal appeal no. 447 of 20128. heard learned counsel for the parties and perused the relevant record. 9. the marriage of the appellant with the deceased was solemnised in the year 1993. she died on 22. 6. 1995. fir was registered on the complaint of the father of the deceased on 24. 6. 1995 against charan singh, the appellant herein, brother - in - law, gurmeet singh and mother - in - law santo kaur. however, in appeal filed by the convicts before the high court, brother - in - law, gurmeet singh and mother - in - law, santo kaur were acquitted whereas the conviction of the appellant was upheld. the sentence awarded to the appellant under section 304b ipc was reduced from ten years rigorous imprisonment to seven years rigorous imprisonment. the sentence of two years rigorous imprisonment each awarded under section 498a and section 201 ipc was affirmed. 10. the conviction of the appellant is under sections 304b and 498a ipc raising presumption regarding dowry death within seven years of marriage. to appreciate the arguments raised by

the learned counsel for the parties, a perusal of section 304b and 498a ipc and section 113b of the indian page 8 of 19 criminal appeal no. 447 of 2012 evidence act would be required. the same are extracted hereinbelow : - explanation. for the purposes of this section, cruelty means ( a ) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health ( whether mental or physical ) of the woman ; or ( b ) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful page 9 of 19 criminal appeal no. 447 of 2012 demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 113b. presumption as to dowry death. when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. explanation. for the purposes of this section, dowry death shall have the same meaning as in section 304 - b of indian penal code ( 45 of 1860 ). 11. the interpretation of sections 304b and 498a ipc came up for consideration in baijnath s case ( supra ). the opinion was summed up in paras 25 to 27 thereof, which are extracted below : - 12. as the aforesaid case was also pertaining to dowry death, presumption under section 113b of the indian evidence page 11 of 19 criminal appeal no. 447 of 2012 act was also discussed in detail in paras 29 to 31 of the aforesaid judgment. the same are extracted below : - 31. the legislative primature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void, by according a presumption against the person charged, cannot be page 12 of 19 criminal appeal no. 447 of 2012 overeased to gloss over and condone its failure to prove credibly, the basic facts enumerated in the sections involved, lest justice is the casualty. 13. a conjoint reading of section 304b ipc and section 113b

of the indian evidence act with reference to the presumption raised was discussed in para 32 of the aforesaid judgment, which is extracted below : - rao v. yadla srinivasa rao [ k. prema s. rao v. yadla srinivasa rao, ( 2003 ) 1 scc 217 : 2003 scc ( cri ) 271 ] to the effect that to attract the provision of section 304 - b of the code, one of the main ingredients of the offence which is required to be established is that soon before her death she was page 13 of 19 criminal appeal no. 447 of 2012 subjected to cruelty and harassment in connection with the demand for dowry. 14. with reference to the legal position as referred to above, the matter is now required to be examined as to whether the case in hand falls in the category where the presumption can be raised against the appellant relieving the prosecution from proving its case and putting the onus on the accused / appellant. 15. the date of death of the deceased is 22. 6. 1995. she was cremated on the same day. the stand taken by the appellant was that the parents of the deceased were informed who were living about 290 kms. away. however, they could not reach on time. it was further submitted that the maternal grandmother and two maternal uncles who were living at a distance of about one furlong from the matrimonial residence of the deceased when she died were present at the time of cremation. they neither raised any issue nor did they inform the police. rather on the intervention of the panchayat, they had taken all the dowry articles. page 14 of 19 criminal appeal no. 447 of 201216. the cruelty or harassment has to be soon before the death. in his evidence, pratap singh ( pw - 1 ), father of the deceased stated that two months after the marriage his daughter came to the parental home stating that the appellant was demanding motorcycle, however, she was sent back. thereafter, she again came and apprised him that the demand of motorcycle was being pressed by the appellant. besides motorcycle, land was also demanded. there is nothing in the statement that any such demand was raised immediately before the death as the incidents sought to be referred to are quite old. he admitted in his cross examination that at the time of funeral, his mother - in - law and two brothers - in - law were present. however, they were threatened not to lodge

the complaint. balbir singh ( pw - 2 ), maternal uncle of the deceased, merely stated that at the time of marriage sufficient dowry was given by the father of the deceased. however, later he heard that the appellant had demanded the motorcycle. in his cross - examination, he admitted that he was living at the distance of about one furlong from the house of the appellant. page 15 of 19 criminal appeal no. 447 of 2012 no dowry was demanded at the time of marriage of the deceased. he did not state that the deceased ever shared with him about the demand of dowry or any harassment on account of non - fulfilment thereof though he was living close to the matrimonial house of the deceased. 17. beero bai ( pw - 3 ), the maternal grandmother of the deceased, stated that her house is located at a distance of about one mile from the house of the appellant. she used to go to the house of the deceased. the deceased was being treated badly. she was not allowed to go to her parental house. the deceased informed her that the appellant used to ask her to bring motorcycle from her maternal grandmother. after the death of her husband in february 1995, the appellant asked the deceased to get land from her maternal grandmother. on a demand made to her, she replied in negative. however, in her cross - examination, she stated that the land was not demanded from her. even in her statement, there is nothing to suggest that soon before the death, any cruelty or harassment was made to the deceased, either by the appellant or his family members. all what is stated is regarding the demand. there are no details of any cruelty or harassment, though this witness page 16 of 19 criminal appeal no. 447 of 2012 was living about a kilometre from the house of the deceased and is her maternal grandmother. 18. joginder singh ( pw - 4 ) is another witness produced by the prosecution, who is maternal uncle of the deceased. he was declared hostile. 19. rajindra singh ( pw - 5 ), sub inspector was a formal witness who had only registered the fir and arrested the accused. 20. babban singh ( pw - 6 ), circle officer, faridpur was the investigating officer. in his examination - in - chief, he admitted that he recorded the statement of jagir singh. he is the person who, as per the complaint made to the police, had informed the father

of the deceased about the death of his daughter. however, he was not produced in evidence. 21. in the aforesaid evidence led by the prosecution, none of the witnesses stated about the cruelty or harassment to the deceased by the appellant or any of his family members on account of demand of dowry soon before the death or otherwise. rather harassment has not been narrated by anyone. it is only certain oral averments regarding demand of motorcycle and land which is also much prior to the incident. page 17 of 19 criminal appeal no. 447 of 2012 the aforesaid evidence led by the prosecution does not fulfil the pre - requisites to invoke presumption under section 304b ipc or section 113b of the indian evidence act. even the ingredients of section 498a ipc are not made out for the same reason as there is no evidence of cruelty and harassment to the deceased soon before her death. 22. defence had produced gurmej singh as dw - 1, who was head of the village at the time of incident. he stated that the information about the death was given to the parents of the deceased and other family members. he stated that belongings of the deceased were handed over to her maternal grandmother and uncle after cremation. his statement is in line with the admission made by biro bai ( pw - 3 ), maternal grandmother, balbir singh ( pw - 2 ). meaning thereby that there was no suspicion regarding the death of the deceased. 23. on a collective appreciation of the evidence led by the prosecution, we are of the considered view that the pre - requisites to raise presumption under section 304b ipc and section 113b of the indian evidence act having not been fulfilled, the conviction of the appellant cannot be justified. mere death of the deceased being unnatural in the matrimonial page 18 of 19 criminal appeal no. 447 of 2012 home within seven years of marriage will not be sufficient to convict the accused under section 304b and 498a ipc. the cause of death as such is not known. 24. for the reasons mentioned above, in our opinion, the conviction and sentence of the appellant under section 304b, 498a and 201 ipc cannot be legally sustained. the appeal is accordingly allowed. the impugned judgment of the high court is set aside. the bail bonds stand cancelled. _ _ _ _ _ _ _ _ _ _ _ _ _, j. ( abhay s. oka ) _ _ _ _ _ _ _ _ _ _ _ _, j.

( rajesh bindal ) new delhi april 20, 2023 / / nr, pm / / page 19 of 19

bela m. trivedi, j. 1. the present special leave petition is directed against the judgment and order dated 16. 11. 2021 passed by the high court of judicature for rajasthan bench at jaipur, whereby the division bench has allowed the d. b. special appeal writ no. 637 of 2021 filed by the respondents - union of india ( appellants before the division bench ), and has set aside the order dated 17. 02. 2021 passed by the single bench, which had allowed the civil writ petition no. 17475 of 2018 signature not verified filed by the present petitioner ( respondent before the division bench ). 2. digitally signed by ashwani kumar the present petitioner was appointed on the post of constable in the date : 2023. 01. 16 17 : 02 : 30 ist reason : cisf on 03. 11. 2007. in april, 2009 the petitioner received a 1 notice / memorandum of charge under the rule 36 of cisf rules 2001 ( hereinafter referred to as the the said rules ) from the office of commandant discipline, cisf in which it was alleged that the petitioner at the time of submitting verification of his character certificate had suppressed the fact that he was involved in a criminal case for the offence under sections 323, 324 and 341 of ipc in respect of which an fir being no. 153 / 2003 was registered against him on 21. 10. 2003 ; and that on the investigating officer in the said proceedings having submitted the charge - sheet before the concerned court, the case was pending for trial before the said court when the character certificate was submitted by the petitioner to the cisf authorities. it was also stated therein that since the act of suppression of information regarding pendency of the criminal litigation in his character certificate filed along with the appointment letter, was under the category of gross misconduct and indiscipline, he was not eligible to be appointed in a very disciplined police force i. e. cisf. thereafter, disciplinary proceedings were initiated against the petitioner. during the course of disciplinary proceedings, the petitioner accepted his mistake. the commandant discipline, cisf, keeping in view the young age and future prospects of the petitioner, imposed 2 punishment of reduction of pay by one stage from rs. 6320 - 6070 / - in the pay band of rs. 5200 - 20, 200 / - with grade pay. however, on 06. 10. 2009, the deputy inspector general ( west zone ), air port head

quarter navi mumbai suo motu took the cognizance of the matter revising the order dated 11. 07. 2009 and remitted the matter back for fresh departmental enquiry against the petitioner invoking rule 54 of cisf rules, 2001. the said departmental enquiry culminated into the removal of the petitioner from service on 09. 03. 2010, against which the petitioner had filed a departmental appeal, however, the said appeal came to be dismissed by the appellate authority vide the order dated 23. 06. 2010. the revision petition filed by the petitioner before the competent authority assailing the said order dated 23. 06. 2010 also came to be dismissed by the revisional authority vide the order dated 21. 12. 2010. 3. being aggrieved by the said orders, passed by the various authorities of cisf, the petitioner filed a writ petition being no. 8190 of 2012 before the high court of judicature for rajasthan at jaipur. the single bench vide order dated 16. 02. 2018 set aside the order of removal passed against the petitioner and directed the petitioner to file a detailed representation before the appointing authority for reconsideration of his case in the context of the judgment of the 3 supreme court in case of avtar singh vs. union of india & ors1 and directed the appointing authority to decide the representation of the petitioner by a reasoned and speaking order with reference to the said judgment. the commandant cisf unit csia, mumbai after considering the representation of the petitioner in the light of the judgment in case of avtar singh ( supra ), held that the cisf being an armed force of union of india, which is deployed in sensitive sectors, the force personnel are required to maintain discipline of the highest order, and that the involvement of the petitioner in the grave offences debarred him from the appointment to such force and, therefore, he was not found suitable for the appointment in cisf for the post of constable / gd vide order dated 14. 05. 2018. 4. the petitioner again filed a writ petition being no. 17475 / 2018 assailing the said order dated 14. 05. 2018. the single bench again set aside the said order and allowed the writ petition directing the respondents to reinstate the petitioner in service with all consequential benefits vide the order dated 17. 02. 2021. the respondents filed the special writ appeal before the division bench, against the order passed by the sigle bench, which

appeal came to be allowed by the division bench vide the impugned order. 1 ( 2016 ) 8 scc 471 45. ms. asifa rashid mir, learned counsel appearing for the petitioner vehemently submitted that the petitioner was involved in a criminal case when he was hardly aged about 19 years and the said case had resulted into a compromise between the parties. according to her, on the basis of the said compromise, the trial court had closed the case on 21. 11. 2007, and the petitioner was appointed as constable in cisf on 03. 11. 2007. relying upon the various decisions of this court and other high courts, she further submitted that considering the nature of offence in which the petitioner was allegedly involved, the removal from service on the ground of non - disclosure of pendency of the said case could not be said to be a grave misconduct attracting the harsh punishment of removal from service. the division bench of the high court, runs the submissions of the counsel for the petitioner, should not have interfered with the well - reasoned order passed by the single bench which had found the involvement of the petitioner in a case of trivial nature. according to her, even if a deliberate suppression by the petitioner as alleged by the respondents was found to have taken place at the time of filing the character certificate, a lenient view should have been taken by the respondents 5 considering his age and considering the fact that the petitioner had accepted his mistake. 6. the senior advocate mr. r. bala subramanian, appearing for the respondents however, taking the court to the cisf rules 2001, the circulars applicable to all central armed police force ( capf ) including the cisf regarding the policy guidelines to be followed in respect of the candidates against whom criminal cases are pending vide om dated 01. 02. 2012, dealing with suppression of information or submitting false information in the verification form, submitted that the cisf being very disciplined police force and the post of constable being very sensitive post, the petitioner who was found to be guilty of gross misconduct of suppressing the material fact of his involvement in the criminal case at the time of seeking appointment, could not have been continued in service, and that the division bench has rightly considered the facts of the case and upheld the decision of the respondent authority, which may not be interfered with. 7. in the instant case, both the learned counsels for the parties have relied upon decision of this court in avtar singh ( supra ) in which a three - judge bench emphasiz

##ing the need of verification of character and antecedents of the person to be appointed in the government service and after considering the various previous judgments of this 6 court, had summarized the principles in para 38 which reads as under : 38. 5. in a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate. 38. 6. in case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion, may appoint the candidate subject to decision of such case. 38. 7. in a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper. 38. 8. if criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime. 38. 9. in case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order of termination / removal or dismissal on the ground of suppression or submitting false information in verification form. 38. 10. for determining suppression or false information attestation / verification form has to be specific, not vague. only such information which was required to be specifically mentioned has to be disclosed. if information not asked for but is relevant comes to knowledge of the employer the 8 same can be considered in an objective manner while addressing the question of fitness. however, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for. 38. 11. before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him. 8. it may be noted that even after the guiding principles laid down in the case of avtar singh by the three - judge bench, divergent views were expressed by the various benches of this court. therefore, this court in case of satish chandra yadav vs. union of india & others. 2, after taking into consideration the inconsistent views taken in the cases of union of india & ors. vs methu meda3 ; union of india v

##s. dilip kumar mallick4 ; pawan kumar vs. union of india & anr. 5 ; rajasthan rajya vidyut prasaran nigam limited & anr. vs. anil kanwariya6 ; mohammed imran vs. state of maharashtra & others7 ; etc., further laid down following principles : 90. in such circumstances, we undertook some exercise to shortlist the broad principles of law which should be made applicable to the litigations of the present nature. the principles are as follows : a ) each case should be scrutinised thoroughly by the public employer concerned, through its designated officials - more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society's security. [ see raj kumar ( supra ) ] b ) even in a case where the employee has made declaration truthfully and correctly of a concluded criminal case, the employer still has the right to consider the antecedents, and cannot be compelled to appoint the candidate. the acquittal in a criminal case would not automatically entitle a candidate for appointment to the post. it would be still open to the employer to consider the antecedents and examine whether the candidate concerned is suitable and fit for appointment to the post. c ) the suppression of material information and making a false statement in the verification form relating to arrest, prosecution, conviction etc., has a clear bearing on the character, conduct and antecedents of the employee. if it is found that the employee had suppressed or given false information in regard to the matters having a bearing on his fitness or suitability to the post, he can be terminated from service. d ) the generalisations about the youth, career prospects and age of the candidates leading to condonation of the offenders'conduct, should not enter the judicial verdict and should be avoided. e ) the court should inquire whether the authority concerned whose action is being challenged acted mala fide. 10f ) is there any element of bias in the decision of the authority? g ) whether the procedure of inquiry adopted by the authority concerned was fair and reasonable? 9. having regard to the guiding principles, laid down in case of avtar singh ( supra ) and in case of satish chandra yadav ( supra ), this court has no hesitation in holding that the single bench of the high court had

committed an error in interfering with the order passed by the respondents - authorities. the respondents - authorities had after taking into consideration the decision in case of avtar singh terminated the services of the petitioner holding inter - alia that while the petitioner was appointed in cisf, a criminal case was pending against him at the time of his enrolment in the force, but he did not reveal the same and that there was deliberate suppression of facts which was an aggravating circumstance. it was also held that cisf being an armed force of union of india, is deployed in sensitive sectors such as airports, ports, department of atomic energy, department of space, metro, power and steel, for internal security duty etc., and therefore, the force personnel are required to maintain discipline of the highest order ; and that the involvement of the 11 petitioner in such grave offences debarred him from the appointment. such a well - reasoned and well considered decision of the respondent - authorities should not have been interfered by the single bench in exercise of its powers under article 226 of the constitution, more particularly when there were no allegations of malafides or of non - observance of rules of natural justice or of breach of statutory rules were attributed against the respondent authorities. 10. the constitution bench, in case of state of orissa & others vs. bidyabhushan mohapatra8 had observed way back in 1963 that having regard to the gravity of the established misconduct, the punishing authority had the power and jurisdiction to impose punishment. the penalty was not open to review by the high court under article 226. a three - judge bench in case of b. c. chaturvedi vs. union of india & ors 9 had also held that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. when an inquiry is conducted on the charges of 8 air 1963 sc 779 9 ( 1995 ) 6 scc 749 12 misconduct by a public servant, the court or tribunal would be concerned only to the extent of determining whether the inquiry was held by a competent officer or whether the rules of natural justice and statutory rules were complied with. 11. in om kumar & others vs. union of india 10 this court had also after considering the wednesbury principles and the doctrine of proportionality held that the

question of quantum of punishment in disciplinary matters is primarily for the disciplinary authority, and the jurisdiction of the high courts under article 226 of the constitution or of the administrative tribunals is limited and is confined to the applicability of one or the other of the well - known principles known as wednesbury principles 11 namely whether the order was contrary to law, or whether relevant factors were not considered, or whether irrelevant factors were considered or whether the decision was one which no reasonable person could have taken. 12. again, a three - judge bench in case of deputy general manager ( appellate authority ) & ors. vs. ajai kumar srivastava 12 10 ( 2001 ) 2 scc 386 11 associated provincial picture houses ltd. vs. wednesbury corporation [ 1948 ] 1 kb 223 12 ( 2021 ) 2 scc 612 13 circumscribing the power of judicial review by the constitutional courts held as under : 13. in view of the afore - stated legal position, we are of the opinion that the division bench of the high court had rightly set aside the order passed by the single bench, which had wrongly interfered with the order of removal passed by the respondent authorities against the petitioner. the petitioner having been found to have committed gross misconduct right at the threshold of entering into disciplined force like cisf, and the respondent authorities having passed the order of his removal from service after following due process of law and without actuated by malafides, the court is not inclined to exercise its limited jurisdiction under article 136 of the constitution. 14. in that view of the matter the slp is dismissed.... j. [ ajay rastogi ].................................. j. [ bela m. trivedi ] new delhi 16. 01. 2023 15

pankaj mithal, j. 1. all eleven accused persons pursuant to the fir registered as signature not verified crime no. 109 / 1999 dated 11. 09. 1999 were acquitted by the digitally signed by pooja sharma date : 2023. 04. 18 17 : 55 : 22 ist reason : 2. aggrieved by the above conviction, the accused a1 and a3 have preferred separate appeals as above. the main appeal is that of a3, i. e., fedrick cutinha. 3. we have heard mr. s. n. bhat, learned senior counsel on behalf of the appellant / accused a3 in the main appeal and ms. n. annapoorani, learned counsel for the appellant / accused a1 in criminal appeal no. 2265 of 2010 as well as the state counsel. 34. the story as set out in the fir, lodged by one honnappa gowda reveals that the incident occurred at 12 noon on 11. 09. 1999, which happened to be a polling day for the lok sabha and assembly elections in the district. according to the informant, on the said date, he along with his brother jagdish, father poovani gouda, his neighbours umanath naika, lingappa naika and balachandra were going towards zila parishad higher primary school, kodipady to cast their votes. he himself, his father and his brother had casted their votes and reached the shop of abdul khadar. then umanath naika asked them to stay there to enable him to cast his vote. after, he was returning from the polling booth and was about to reach the shop, an autorickshaw came from the puttur side and stopped in front of the shop. krishnappa naika, fedrick cutinha, laxman naika, dheeraj gowda, inas veigas, cyril veiga, maurice veigas, shivappa naika and padmanabha gowda got down from the said autorickshaw and came towards them. laxman naika and fedrick cutinha threw chili powder on the face of umanath naika. when umanath naika tried to escape, krishnappa naika 4 ( who is none other than the brother of umanath naika ) came out from the autorickshaw, stabb

##ed him on his left shoulder with a sharp knife. he then stabbed him on the left eyelid and the left eyebrow. krishnappa naika also stabbed the right portion of the chest of lingappa naika, who was by the side of umanath naika, with the same knife. laxman naika, who was accompanying krishnappa naika, stabbed his father poovani gowda on the back with the knife. fedrick cutinha assaulted on the head of balachandra with an iron rod. he then kicked jagdish on the left thigh. fedrick cutinha also assaulted on his head by rod. the others also joined them in assaulting. upon raising an alarm, all of them returned to the autorickshaw, in which they had come and fled. 5. lingappa naika, who had sustained injuries, ran towards the school and fell down at a short distance. a home - guard at the election booth lifted lingappa naika and sent him and umanath naika, poovani gowda and balachandra to the government hospital, puttur for treatment in an autorickshaw. thereafter, the informant and his brother jagdish also went 5 for treatment to the government hospital, where they came to know that lingappa naika had succumbed to the injuries. the doctors attended to them. all injured umanath naika, balachandra and poovani gowda were admitted in the hospital, but the informant and his brother jagdish were discharged after treatment. 6. the reason behind the above incident was a property dispute between umanath naika and his brother krishnappa naika. it was on account of the property dispute between the two and the past enmity that krishnappa naika caused an unlawful assembly and attacked all of them stabbing lingappa naika with knife causing his death. 7. it is apparent from the narration of facts, as stated in the fir, that there were two factions ; one consisting of the informant honnappa gowda, his father poovani gowda, his brother jagdish and his neighbours umanath naika with lingappa naika, in all five persons ; and the other which came in an autorickshaw consisting of eight persons headed by a1 - 6 krishnappa nai

##ka including a3 fedrick cutinha. in other words, the attacking party of eight persons was headed by krishnappa naika and included fedrick cutinha. the victim s side had five persons headed by umanath naika and the informant honnappa gowda and others. thus, the two brothers, i. e., krishnappa naika and umanath naika were in the rival groups. 8. the judgment and order of the trial court reveals that the inspector of police, puttur, submitted charge sheet in c. c. no. 4444 / 99 against 11 persons. since some of the accused persons were not traceable despite issuance of non - bailable warrant, the case was split up. two session cases nos. 18 / 2000 and 130 / 2000 came to be registered before the court of ii additional sessions judge, dakshin kannad, manglore. both the aforesaid cases were decided by common judgment and order dated 21st august, 2001. the trial court recorded that the only independent witness pw - 19 abdul khadar had turned hostile and that the evidence of the star witnesses lacked neutrality. the court upon consideration of the entire evidence 7 recorded that the prosecution had failed to prove its case beyond all reasonable doubts and as such all are entitled to benefit of doubt. accordingly, all were acquitted. 9. in the criminal appeals preferred by the state, as stated earlier, the acquittal of all accused was affirmed except for accused nos. 1 and 3. it is, therefore, that both the above accused / convicts have preferred these appeals. 10. in the appeals before us against the conviction of a1 and a3, it is submitted that in a case for acquittal of all accused by the trial court, the high court ought not to have overturned the acquittal of any of the accused much less, i. e., of a1 krishnappa naika and a3 fedrick cutinha, until and unless, there was any perversity in appreciating the evidence by the trial court. the high court as an appellate court in convicting and sentencing the accused a1 and a3 ought to have given both of them an opportunity of hearing on the quantum of punishment before sentencing them to life imprisonment and imprisonment for five years for offences under sections 302 and 8 326 of the ipc respectively read with section 34 of the ipc. lastly, a3 had not assaulted the

deceased. he had only been assigned the role of assaulting and kicking some of the other persons of the victim s side and throwing of chili powder on the face of umanath naika and as such do not warrant the above punishment. 11. the high court accepts most of the observations made by the trial court that the evidence of several witnesses was in the nature of interested testimony which does not find corroboration by any independent witness. the testimony of pw - 9 was disbelieved as a setup witness whose presence at the place of incident was held to be doubtful. the independent witness pw - 19 was reported to have turned hostile. however, solely on the evidence of pw - 5, mr. k. dheeraj gowda, the high court recorded a finding that the participation of a1 and a3 is convincingly proved and as such ordered for their conviction and imprisonment. 12. the high court in recording the above conviction has not assigned any good reasons from deviating with the findings returned by the trial court and at the same time has not even stated that the findings so recorded by the trial court in acquitting all the accused, including a1 and a3 are in any way perverse. 13. there is no room to doubt the powers of the appellate court and that it has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. however, the appellate court has to bear in mind that in case of acquittal there is double presumption of innocence in favour of the accused. first, the presumption of innocence is available to all accused under the criminal jurisprudence as every person is presumed to be innocent unless proved to be guilty before the competent court of law. secondly, the accused having secured the acquittal, the presumption of their innocence gets further reinforced and strengthened. therefore, the appellate court ought not to lightly interfere with the order of acquittal recorded by the trial court unless there is gross perversity in the 10 appreciation of the evidence and even if two views are possible, it should follow the view taken by the trial court rather than choosing the second possible version. 14. in rohtash vs. state of haryana, ( 2012 ) vol. 6 scc 589, the apex court held as under : 15. in view of the above settled legal position and the fact that the trial court has recorded acquittal of all accused upon careful appreciation of the entire evidence on record with which the

high court had not found fault with, we are of the opinion that the appellate court committed an error of law in recording 11 conviction of a1 and a3 merely for the reason that their presence and participation in the crime was proved by the evidence of one of the witnesses. 16. the case of the a3 stands on altogether a different pedestal insofar as neither the allegations in the fir nor the evidence establishes his role in the killing of the deceased. as stated earlier, his role is confined to kicking, hitting and throwing chili powder rather than assaulting any of the injured persons or the deceased with the knife. 17. this court in darshan singh & others vs. state of punjab ( 2009 ) 16 scc 290 ruled that accused have to be convicted on the basis of their individual acts and where an accused inflicted simple injuries with lathis etc., he is ordinarily not to be convicted for the offence of murder. 18. this apart, in view of sub - section ( 2 ) of section 235 of crpc, the court is obliged to hear the accused persons after their conviction on the quantum of sentence before passing a sentence against them. even otherwise as a general rule, the trial court is duty bound to adjourn the matter to a future date 12 after recording the conviction so as to call upon both the sides to hear on the question of sentence before sentencing the accused persons. 19. the principle of according opportunity of hearing to the convict before sentencing him is equally applicable where the sentencing is done by the appellate court. it may be true that opportunity of hearing may not have a bearing, if minimum of the sentence is being imposed. it may also not be necessary in every case to fix a future date after conviction for the purpose of sentencing but the convicts are entitled to opportunity of hearing on sentence. 20. in the case at hand, the trial court had acquitted a1 and a3 but they were convicted by the appellate court. therefore, the appellate court was obliged under law to hear them on the quantum of sentence in accordance with the mandate of sub - section ( 2 ) of section 235 of crpc before pronouncing any sentence against them. the appellate court has ex - facie failed to follow the said procedure. 21. it is to be noted that convict a1 krishnappa naika @ kittu naika has already spent over 11 years in actual custody as is reflected by order of this court dated 02. 12. 2022 passed in his bail application.

22. in view of the above facts and circumstances, we are of the opinion that the high court in exercise of its appellate jurisdiction could not have interfered with the acquittal of the accused persons so as to convict a1 and a3. accordingly, the conviction of a1 and a3 is hereby set aside and the judgment and order of the high court dated 28. 06. 2008 is also set aside. 23. the appeals are allowed. j. [ v. ramasubramanian ] j. [ pankaj mithal ] new delhi ; april 18th, 2023.

ahsanuddin amanullah, j. signature not verified digitally signed by jagdish kumar date : 2023. 05. 11 16 : 06 : 38 ist heard learned senior counsel / counsel for the reason : parties. 2. leave granted. 3. the present appeal is directed against the judgment and order dated 21. 09. 2022 ( hereinafter referred to as the impugned judgment ) rendered by a learned single bench of the high court of madhya pradesh at jabalpur ( hereinafter referred to as the high court ) in mcrc no. 43998 of 2022, in which a finding, albeit prima facie, of being guilty of dereliction of duty against the appellant has been recorded. further, it was observed in the impugned judgment that the appellant is not fit to be assigned any important responsibility in the police department and is unfit to hold any responsible post. it has further been noted that the superintendent of police, katni had already line - attached the appellant and was initiating enquiry for imposition of major penalty, for which he would get conducted a preliminary enquiry by the additional superintendent of police and forward the 3 report to the disciplinary authority for imposition of a major penalty. 4. the impugned judgment also records a direction issued to take appropriate action against the appellant for dereliction of duty, insubordination and causing undue disruption in the proceedings of the high court. the factual prism : 5. the appellant was an inspector of sleemanabad police station, katni where fir no. 424 of 2021 dated 18. 07. 2021 was registered against the accused therein, one shiv kumar kushwah ( hereinafter referred to as the accused ) under sections 376 & 506 of the indian penal code, 1860 ( hereinafter referred to as the ipc ), sections 3 and 4 of the protection of children from sexual offences act, 2012 ( hereinafter referred to as the pocso act ), sections 3 ( 1 ) ( w ) ( ii ) and 3 ( 2 ) ( v ) of the scheduled castes and the scheduled tribes ( prevention of atrocities ) act, 1989 and sections 67 and 67a of the information technology act, 2000. the 4 forensic science laboratory report ( hereinafter referred to as the fsl report ) was forwarded to the office of the superintendent of police, katni on 25. 10. 2021. the fsl report was forwarded to the appellant with a note that dna examination as per guidelines be undertaken. however, the dna

examination was not carried out. in the meantime, the accused filed mcrc no. 43998 of 2022 seeking bail before the high court. 6. during the proceedings, the high court called for the case - diary, but the fsl report was not included therewith. this led the high court to seek the personal appearance of the superintendent of police, katni and the in - charge of the regional forensic science laboratory, jabalpur. on 21. 09. 2022, the duo mentioned supra appeared before the high court, and informed that the fsl report was sent to the office of superintendent of police, katni on 25. 10. 2021. the superintendent of police, katni stated that the fsl report was forwarded to the appellant along with communication dated 5 27. 10. 2021, with a note that dna examination as per guidelines be carried out. however, the same was not done, as the appellant took the stand that the concerned woman sub - inspector had not brought the fsl report to his knowledge. 7. the learned government advocate for the state stated before the high court that the case - diary had been received in the office of the learned advocate general on 13. 09. 2022, but the fsl report was not included therewith. this prompted the high court to pass the impugned judgment, as discussed above. submissions by the appellant : 8. learned senior counsel for the appellant submitted that the accused had filed mcrc no. 43998 of 2022 under section 439 of the code of criminal procedure, 1973 ( hereinafter referred to as the code ), which only relates to grant of bail to an accused in custody. thus, the direction to take action and hold a departmental enquiry as also the recording of finding 6 against the appellant cannot be sustained. in support of his contention, learned counsel referred to and relied upon the decisions of this court in sangitaben shaileshbhai datanta v state of gujarat, ( 2019 ) 14 scc 522 and state represented by inspector of police v m murugesan, ( 2020 ) 15 scc 251. it was contended that no matter how laudable the object, while deciding an application for bail, the court cannot enter into any other realm. submissions of the respondent - state : 9. per contra, learned counsel for the state submitted that the appellant had, clearly, exhibited insubordination, incompetence and, dereliction of duty in an important matter and thus, in

any way, was liable to be proceeded against. it was submitted that the departmental committee concerned had also conducted an enquiry where the appellant and some other officials were found negligent in performing their duties in providing the fsl report along with the case - diary besides suppressing material documents. learned counsel 7 added that due to an interim stay apropos the departmental proceedings against the appellant, granted vide order dated 23. 11. 2022, the matter could not be taken to its logical end. analysis, reasoning and conclusion : 10. having given the matter our anxious and thoughtful consideration, though the appellant may have a point that, stricto sensu, in a petition under section 439 of the code, the concerned court ought not to travel beyond considering the specific issue viz. whether to grant bail or reject bail to an accused in custody, it cannot be lost sight of that the court concerned herein was not a court of session but the high court for the state of madhya pradesh, established under article 214 of the constitution of india ( hereinafter referred to as the constitution ). 11. this singular fact, for reasons elaborated hereinafter, leads us to decline interfering with the impugned judgment, but for different reasons. we have 8 no hesitation in stating that had the impugned judgment been rendered by a court of session, the factors that would have weighed with us would be starkly different. 12. a little digression is necessitated. the high court is a constitutional court, possessing a wide repertoire of powers. the high court has original, appellate and suo motu powers under articles 226 and 227 of the constitution. the powers under articles 226 and 227 of the constitution are meant for taking care of situations where the high court feels that some direction ( s ) / order ( s ) are required in the interest of justice. recently, in b s hari commandant v union of india, 2023 scc online sc 413, the present coram had the occasion to hold as under : 13. returning to the present case, though usually the proper course of action of the high court ought to have been to confine itself to the acceptance / rejection of the prayer for bail made by the accused under section 439 of the code ; however the high court, being satisfied that there were, in its opinion, grave lapses on the part of the police / investigative machinery, which may have fatal consequences on the justice delivery system, could not have simply shut its eyes. 14. we are of

the view that the learned single bench could have directed institution of separate proceedings taking recourse to article 226 of the constitution, after formulating reasons and points for consideration. thereafter, the matter should have been referred to the 10 learned chief justice of the high court for placing it before an appropriate bench, which would proceed in accordance with law, of course, after affording adequate opportunity to the person ( s ) proceeded against. 15. with regard to the high court s justified concern to prevent miscarriage of justice, separate / fresh proceedings could have been instituted as indicated above. we hasten to add that our observations are not to be construed to imply that the high courts should delve into the efficacy of investigation at the stage of bail, and the present judgment is not to be misread to haul up the investigative agencies / officers in all cases. 16. this court could have interfered with the direction for departmental proceedings against the appellant, as learned counsel for the appellant advanced, had been so done in sangitaben shaileshbhai datanta ( supra ) and m murugesan ( supra ). however, it 11 would be proper to take note that in the aforesaid two cases, the factual positions were quite different. in sangitaben shaileshbhai datanta ( supra ), the court took note of the fact that in the case involving rape of a minor, the high court ordering the accused and the appellant therein, who was the grandmother of the victim along with parents of the victim to undergo scientific tests viz. lie detection, brain - mapping and narco - analysis was not only in contravention of the first principles of criminal law jurisprudence but also a violation of statutory requirements and thus, the bail granted to the accused was cancelled. the facts of the instant case are quite different, and ergo, sangitaben shaileshbhai datanta ( supra ) does not aid the appellant. 17. in m murugesan ( supra ), it was noted that the jurisdiction of high court is limited to grant or refuse to grant bail pending trial and such jurisdiction ends when the bail application is finally decided. in this background, the high court, after 12 taking a decision on the bail application, having retained the file and directing the state to constitute a committee and seek its recommendation on reformation, rehabilitation and re - integration of convicts / accused persons and best practices for improving the quality of investigation and also to obtain district - wise data from state and upon submission of final data, after reviewing the same, making

such data a part of the order after decision on bail application, was held to be beyond jurisdiction. in the present case, on the date of passing of the impugned judgment, the bail application was still at large, and had not yet been decided one way or the other. 18. there is no quibble with the propositions lucidly enunciated in sangitaben shaileshbhai datanta ( supra ) and m murugesan ( supra ). yet, as our discussions in the preceding paragraphs display, the same are inapplicable to the extant factual matrix. it is too well - settled that judgments are not to be read as euclid s theorems ; they are not to be construed as statutes, and ; specific 13 cases are authorities only for what they actually decide. we do not want to be verbose in reproducing the relevant paragraphs but deem it proper to indicate some authorities on this point sreenivasa general traders v state of andhra pradesh, ( 1983 ) 4 scc 353 and m / s amar nath om prakash v state of punjab, ( 1985 ) 1 scc 345 which have been reiterated, inter alia, in bgs sgs soma jv v nhpc limited, ( 2020 ) 4 scc 234, and chin - tels india limited v bhayana builders private limited, ( 2021 ) 4 scc 602. 19. in the present case, the judgment impugned was passed before the final disposal of the bail application by the high court. on a closer scrutiny of the judgment impugned, it is clear that the superintendent of police, katni, while appearing in person on 21. 09. 2022 had submitted that he had already line - attached the appellant vide an order dated 20. 09. 2022 and was initiating enquiry for imposition of major penalty. the high court was informed that the superintendent of police, katni would get conducted 14 preliminary enquiry in the hands of the additional s. p. and forward the report to the disciplinary authority of the t. i. to initiate inquiry for major penalty. 20. the aforenoted was only reiterated by the high court in the latter portion of the judgment impugned, in the following terms : 21. a combined reading of the afore - extracted snippets makes it crystal clear that the superintendent of police, katni, who was the officer superior to the appellant, himself had stated that he would take