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action against the appellant and was initiating enquiry for imposition of major penalty, which statement was a suo 15 motu act and not upon or flowing from any direction of the court. therefore, there was no occasion for the high court to further observe for action against the appellant to be taken, as already, the superintendent of police, katni had taken a decision to initiate enquiry against the appellant for imposition of major penalty. 22. be that as it may, the facts of the case prima facie disclose that in such an important and sensitive case, there had been, at least prima facie, callousness on the part of the police officer ( s ) concerned, including the appellant, in conducting a proper investigation to bring on record all relevant materials in support of the truth. amidst such backdrop, the chances of undue benefit accruing to the accused, leading to miscarriage of justice, cannot be ruled out, and may, in fact, have increased. the significance of the investigative component cannot be emphasised enough, and the views of this court on such aspect have been brought to the fore in sidhartha vashist v state 16 ( nct of delhi ), ( 2010 ) 6 scc 1 and manoj v state of madhya pradesh, ( 2023 ) 2 scc 353. 23. in this connection, on a slightly different but connected context, it would be apposite to refer to the judgment in state of gujarat v kishanbhai, ( 2014 ) 5 scc 108, wherein the court opined and directed as under : 24. while respectfully reiterating the above, drawing an analogy therefrom, as the lapses are grave, and additionally, but importantly, the factum that the authority viz. the superintendent of police, katni, itself realised lapses had crept into the investigation, and decided to initiate proceedings against the appellant ( and others ), the operative 18 portion of the judgment impugned by the high court, becomes, merely reiterative, perhaps in more direct terms, of what had been stated before it. as such, purely, in the extant facts and circumstances, the impugned judgment does not warrant any interference by this court. we propose no order as to costs. 25. in sum, on an overall circumspection, and in view of the discussion in the preceding paragraphs, the instant appeal deserves to be, and is, dismissed, with the caveat that the high

court s observations are not to be treated as findings against the appellant. 26. interim order dated 23. 11. 2022, in the present case, is vacated. however, it is made clear that any observation ( s ) made by the high court in relation to the appellant in the judgment impugned shall not cause any prejudice to him in the departmental proceedings, which shall take its own course, in accordance with law, and after providing full and effective opportunity to the appellant. 27. the appellant would be entitled to raise all grounds and contentions, as may be available to him, in facts and law, in the departmental proceedings. our ob - servations aforesaid, equally, will not prejudice the appellant, nor shall they be used against the accused......................... j. [ krishna murari ]........................ j. [ ahsanuddin amanullah ] new delhi may 11, 2023

with writ petition ( civil ) no. 147 of 2023 reasons the legal issue raised in the aforementioned writ petitions relates to the scope and ambit of judicial review in the matter of appointment of judges to the high courts under article 217 of the constitution of india1. 1 217. appointment and conditions of the office of a judge of a high court. ( 1 ) every judge of a high court shall be appointed by the president by warrant under his hand and seal on the recommendation of the national judicial appointments commission referred to in article 124a, and shall hold office, in the case of an additional or acting judge, as provided in article 224, and in any other case, until he attains the age of sixty - two years : provided that ( a ) a judge may, by writing under his hand addressed to the president, resign his office ; signature not verified ( b ) a judge may be removed from his office by the president in the manner provided in clause ( 4 ) of digitally signed by sweta balodi date : 2023. 02. 10 article 124 for the removal of a judge of the supreme court ; 17 : 26 : 00 ist reason : ( c ) the office of a judge shall be vacated by his being appointed by the president to be a judge of the supreme court or by his being transferred by the president to any other high court within the territory of india. w. p. ( c ) nos. 148 & 147 of 2023 page 1 of 92. in our opinion, this legal issue is settled and is not res integra. 3. this court, in mahesh chandra gupta v. union of india and others2, has held that appointment of a judge is an executive function of the president of india. article 217 ( 1 ) prescribes the constitutional requirement of consultation. fitness of a person to be appointed as a judge of the high court is evaluated in the consultation process. evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation. while article 217 ( 2 ) prescribes the threshold limit or the entry point for a person to be qualified to be a judge of a high court, article 217 ( 1 ) prescribes the procedure to be followed, which ( 2 ) a person shall not be qualified for appointment as a judge of a high court unless he is a citizen of india and ( a ) has for at least ten years held a judicial office in the territory of india ; or ( b ) has for at least ten

years been an advocate of a high court or of two or more such courts in succession ; explanation. for the purposes of this clause ( a ) in computing the period during which a person has held judicial office in the territory of india, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a high court or has held the office of a member of a tribunal or any post, under the union or a state, requiring special knowledge of law ; ( aa ) in computing the period during which a person has been an advocate of a high court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the union or a state, requiring special knowledge of law after he became an advocate ; ( b ) in computing the period during which a person has held judicial office in the territory of india or been an advocate of a high court, there shall be included any period before the commencement of this constitution during which he has held judicial office in any area which was comprised before the fifteenth day of august, 1947, within india as defined by the government of india act, 1935, or has been an advocate of any high court in any such area, as the case may be. ( 3 ) if any question arises as to the age of a judge of a high court, the question shall be decided by the president after consultation with the chief justice of india and the decision of the president shall be final. 2 ( 2009 ) 8 scc 273. w. p. ( c ) nos. 148 & 147 of 2023 page 2 of 9 procedure is designed to test the fitness of a person so to be appointed ; her character, her integrity, her competence, her knowledge and the like. thus, this judgment draws on the basic difference between eligibility and suitability. eligibility is an objective factor which is determined by applying the parameters or qualifications specified in article 217 ( 2 ). therefore, when eligibility is put in question, the question would fall within the scope of judicial review. however, the question whether a person is fit to be appointed as a judge essentially involves the aspect of suitability and stands excluded from the purview of judicial review. 4. the ratio in this judgment has been followed in m. manohar reddy and another v. union of india and others3, inter alia, observing that the consultative process envisaged under article 217 ( 1 ) is to limit the judicial

review, restricting it to the specified area, that is, eligibility, and not suitability. after referring to two decisions of the 9 judges bench in supreme court advocates - on - record association and others v. union of india4, and special reference no. 1 of 1998, re : 5, it is opined that judicial review lies 3 ( 2013 ) 3 scc 99. 4 ( 1993 ) 4 scc 441. 5 ( 1998 ) 7 scc 739. w. p. ( c ) nos. 148 & 147 of 2023 page 3 of 9 when there is lack of eligibility or lack of effective consultation. judicial review does not lie on content of consultation. 5. elaborating on what is meant by the term lack of effective consultation, we would like to refer to the observations made by this court in supreme court advocates - on - record association and others ( supra ) : the opinion of the chief justice of india formed in the manner indicated is sufficient safeguard and protection w. p. ( c ) nos. 148 & 147 of 2023 page 4 of 9 against any arbitrariness or bias, as well as any erosion of the independence of the judiciary. 482. this is also in accord with the public interest of excluding these appointments and transfers from litigative debate, to avoid any erosion in the credibility of the decisions, and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision. the growing tendency of needless intrusion by strangers and busybodies in the functioning of the judiciary under the garb of public interest litigation, in spite of the caution in s. p. gupta while expanding the concept of locus standi, was adverted to recently by a constitution bench in krishna swami v. union of india. it is, therefore, necessary to spell out clearly the limited scope of judicial review in such matters, to avoid similar situations in future. except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the case of an appointment, or of a transfer being made without the recommendation of the chief justice of india, these matters are not justiciable on any other ground, including that of bias, which in any case is excluded by the element of plurality in the process of decision - making. 6. following the ratio, in mahesh chandra gupta ( supra ), it has been held that : 7. to further elucidate, we

need to state that after the collegium of the high court makes a recommendation for elevation, inputs are received from the intelligence agencies, which conduct a background check, and comments from the government are considered by the collegium of the supreme court consisting of the chief justice of india and two senior most judges. opinion and comments of the judges in this court conversant with the affairs of the high court concerned are called for in writing and placed before the collegium. invariably a number of shoot down and dismissive letters and communications from all quarters are received. only thereafter, and on consideration, the collegium of the supreme court takes a final call, which is then communicated to the government. 8. during the course of hearing before us, it was accepted that a number of persons, who have had political backgrounds, have been elevated as judges of the high courts and the supreme court, and this by itself, though a relevant consideration, has not been an absolute bar to appointment of otherwise a suitable person. similarly, there have been cases where the persons recommended for elevation have expressed reservations or even criticised policies or actions, but this has not been held to be a ground to treat them w. p. ( c ) nos. 148 & 147 of 2023 page 6 of 9 as unsuitable. it goes without saying that the conduct of the judge and her / his decisions must reflect and show independence, adherence to the democratic and constitutional values. this is necessary as the judiciary holds the centre stage in protecting and strengthening democracy and upholding human rights and rule of law. 69. we have made the said observations as these are aspects which are established and are taken into consideration by the collegiums, both of the high courts and the supreme court. it is in this context that we reject the argument that the facts were not known and considered by the collegium. the petitioners have themselves stated and enclosed copy of their representation dated 1st february 2023, albeit the collegium of the high court and the supreme court have not, on this basis, deemed it appropriate to withdraw the recommendation or recall their decision. 10. we are clearly of the opinion that this court, while exercising power of judicial review cannot issue a writ of certiorari quashing the recommendation, or mandamus calling upon the collegium of the supreme court to reconsider its decision, as this would be contrary to the ratio and dictum of the earlier decisions of this court referred 6 see n. kannadasan v. ajoy khos

##e and others, ( 2009 ) 7 scc 1. w. p. ( c ) nos. 148 & 147 of 2023 page 7 of 9 to above, which are binding on us. to do so would violate the law as declared, as it would amount to evaluating and substituting the decision of the collegium, with individual or personal opinion on the suitability and merits of the person. 11. the decision of this court in shri kumar padma prasad v. union of india and others7, was a case relating to eligibility of a person, in whose favour the warrant for appointment as a judge of the high court had been issued, but who was not qualified to be appointed as a judge of the high court. the ratio of this judgment cannot be extended to apply the power of judicial review to examine the suitability or merit of a candidate. 12. we may also state that the person in question has been elevated as an additional judge of the high court of judicature at madras. on taking oath the person pledges to work as a judge to uphold the constitution and the laws. article 51a8 of the constitution casts an obligation on every citizen, and more so on every judge, to promote harmony, spirit of common brotherhood among all transcending religious, linguistic, regional or sectional diversities. principle of secularism and dignity of every individual regardless of the 7 ( 1992 ) 2 scc 428 8 part iv - a - fundamental duties. w. p. ( c ) nos. 148 & 147 of 2023 page 8 of 9 religion, caste or creed, is the foundation of rule of law and equal protection of laws. not only is the conduct and judgments delivered considered at the time of confirmation, a judge is judged everyday by the lawyers, litigants and the public, as the courts are open and the judges speak by giving reasons in writing for their decisions. 13. for the aforesaid reasons, we do not find any merit in the present writ petitions and, thus, we are not inclined to entertain and issue notice. 14. the writ petitions are dismissed at the admission stage....................................... j. ( sanjiv khanna ).........................

............. j. ( b. r. gavai ) new delhi ; february 10, 2023. w. p. ( c ) nos. 148 & 147 of 2023 page 9 of 9

v. ramasubramanian, j. 1. aggrieved by the judgment of the gauhati high court allowing an appeal preferred by the state ( national investigation agency1 ) and thereby reversing an order of discharge passed by the special court, nia, guwahati, assam, the person named as accused no. 1 in the criminal case has come up with this special leave petition. 2. we have heard shri huzefa ahmadi, learned senior counsel signature not verified appearing for the petitioner and shri tushar mehta, learned digitally signed by pooja sharma date : 2023. 04. 18 16 : 55 : 37 ist reason : solicitor general and ms. aishwarya bhati, learned additional 1 for short, nia 1 solicitor general appearing for the respondents. 3. a fir being chanmari case no. 1688 / 2019, was registered against the petitioner and three others on 13. 12. 2019 for alleged offences punishable under sections 120b, 124a, 153a and 153b of the indian penal code, 1860 read with sections 18 and 39 of the unlawful activities ( prevention ) act, 1967. nia took over the investigation and the fir was re - registered as rc - 13 / 2019 / nia - guw [ kmss - cpi ( maoist ) ] link case. 4. the petitioner was arrested on 17. 12. 2019 and a charge - sheet was filed on 29. 05. 2020. 5. the application for bail filed by the petitioner was rejected by the special court on 07. 08. 2020. the challenge to the same before the high court as well as this court proved unsuccessful. 6. however, by an order dated 01. 07. 2021, the special court ( nia ) discharged the petitioner. as a consequence, the petitioner was released, after suffering incarceration for about 567 days. 7. nia preferred an appeal before the high court of gauhati, challenging the order of discharge. the said appeal was allowed by the gauhati high court by a judgment dated 09. 02. 2023. it is against the said judgment that the petitioner, arrayed as 2 accused no. 1, has come up with this special leave petition. 8. it is relevant to note at this stage that there were 4 accused in the criminal case. the special court discharged all the four accused, by its order dated 01. 07. 2021 and

the said order of the special court was overturned by the high court. therefore, persons arrayed as accused nos. 2 and 3 first came up with special leave petition in slp ( crl. ) no. 2292 of 2023. the said special leave petition was dismissed by this court by an order dated 17. 02. 2023, which reads as follows : - 9. it is only thereafter that the petitioner herein ( a - 1 ) came up with this special leave petition. therefore, this special leave petition also deserved to meet with the same fate. but shri huzefa ahmadi, learned senior counsel pointed out that on one aspect, the petitioner herein stands on a different footing from 3 accused nos. 2 and 3. accused nos. 2 and 3 were released on bail even before the order of discharge was passed by the special court and hence there was no threat of their arrest, consequent upon the order of discharge being set aside by the high court. however, in this case, the petitioner is likely to be arrested, pursuant to the impugned judgment of the high court, as his bail application stood rejected upto this court. therefore, the learned senior counsel pleaded that if the court was not inclined to order notice, the petitioner should at least be protected against arrest. 10. in view of the aforesaid, this court ordered notice, for a limited purpose when this special leave petition came up for orders as to admission,. the order dated 21. 02. 2023 passed in this special leave petition is self - explanatory and it is reproduced as follows : - 11. therefore, we heard arguments confined only to the question of protection against arrest. 12. strongly opposing the plea for protection against arrest, shri tushar mehta, learned solicitor general contended : that there are as many as 64 firs against the petitioner ; that the petitioner is the leader of a terrorist organization inciting and training youngsters to take to violence ; that the bail application moved by the petitioner was dismissed upto this court ; that the release of the petitioner on 01. 07. 2021 was pursuant to a wrong order of discharge and, hence, the moment the order of discharge was set aside by the high court, the benefit derived by the petitioner on account of the wrong order of discharge should also be forfeited ; and that in any case, this court cannot allow this special leave petition arising out of discharge proceedings, to be converted into an application for bail. according to the learned solicitor general, the above

special leave petition deserves to be dismissed and the law permitted to take its own course and that if in the process, the petitioner gets arrested, his remedy will be to move a fresh bail application. 513. the learned solicitor general also drew our attention to the statements of the protected witnesses relied upon by the nia and pleaded that the petitioner does not deserve any sympathy. 14. in response, it was argued by shri huzefa ahmadi, learned senior counsel, that the petitioner had already suffered incarceration nearly for a period of 18 months from 17. 12. 2019 to 01. 07. 2021 ; that after the order of discharge, the petitioner has been a free person for the past more than 21 months ; that the petitioner is a sitting member of the assam legislative assembly, having been elected in the elections held in 2021 ; that the fir out of which the present proceeding arises, relates to the protest organized by several political parties and independent organizations against the citizenship ( amendment ) act, 2019 ; that the allegations revolving around maoist ideology, allegedly propagated by the petitioner, are linked to certain statements said to have been made by the petitioner in the year 2009 ; that those statements attributed to the petitioner, even if true, were of the distant past which have no proximity to the events that led to the present fir ; that even the statement of a protected witness extracted in paragraph 26 of the impugned judgment of the high 6 court clearly shows that the petitioner did not support any ideology focused on violent methods ; and that therefore, the petitioner deserves to be protected against arrest. 15. we have carefully considered the rival submissions. 16. before we proceed to consider the rival contentions, we are obliged to note that the order of discharge passed by the special court was reversed by the high court on two grounds, namely, ( i ) that the prosecution was not granted sufficient opportunity by the special court to respond to the written submissions filed at the last minute by the accused, running to about 1225 pages ; and ( ii ) that at the stage of framing of charges, the special court ought not to have entered into minute details. since the high court was reversing the order of discharge only on these two grounds, the high court actually remanded the matter back to the special court for a fresh consideration. 17. it will be relevant in this regard to extract paragraph 53 of the impugned order as follows : consideration by the learned special judge, nia. we accordingly, set aside the impugned order dated 01

. 07. 2021 and remand the matter back to the learned trial court to conduct a fresh hearing on the 7 question of framing of charge against all the four accused persons. in doing so, it will be open for the learned special judge to record fresh reasons, in the light of the observations made above, as regards existence or otherwise of materials for framing charge against all or any of the accused persons. it would also be open for the learned special judge, nia to consider, if this is a case where charge can be framed against the accused persons under the ua ( p ) act or whether charge needs to be framed against all or any of them only under the provisions contained in the ipc. on such consideration, if it is found that the statements of the witnesses and the documents on record are not sufficient to frame charge against the accused persons under any of the provisions of the ua ( p ) act but there are materials to frame charge under the provisions of the ipc, then in that event, the learned court below may invoke jurisdiction under section 20 of the national investigation agency act, 2008 and transfer the matter for trial by the competent court having jurisdiction in the matter. 18. it is clear from the operative portion of the impugned order extracted above that the matter is actually at large as on date. the special court is now obliged to hear both parties and take a fresh call as to whether charges can be framed against all or any of the accused and, if so, under what provisions of law. it is in this context that the question whether the petitioner should be allowed to be sent back to custody, has to be considered. 19. it is true that the application for bail filed by the petitioner, during the period when investigation was pending, was rejected upto this court. but as rightly pointed out by shri huzefa 8 ahmadi, learned senior counsel, this court recorded in its order dated 11. 02. 2021 that it was not inclined to grant bail to the petitioner at this stage. therefore, the dismissal of the application for bail at the time when investigation was pending, is no ground to reject the prayer for protection against arrest, now made by the petitioner. 20. it is true as contended by the learned solicitor general that the present special leave petition concerns only one question namely whether the judgment of the high court reversing the order of discharge passed by the special court, is correct or not. but it does not mean that the court, while rejecting the prayer for a larger relief, cannot

even consider the grant of the smaller relief. 21. admittedly the petitioner has suffered incarceration for about 567 days from 17. 12. 2019 to 01. 07. 2021. he has been out as a free man for the past more than 21 months. it is important to note that his freedom was secured not by an order of bail, but by an order of discharge passed by the special court, which has now been reversed by the high court. nothing has been brought on record to show that during this period of 21 months, when the 9 petitioner has been a free man, he has indulged in any unlawful activity. on the contrary, the petitioner got elected to the legislative assembly in the year 2021 and he is now a sitting member of the assembly. 22. except in cases of preventive detention, the purpose of detaining a person in police / judicial custody, is either to facilitate fair and proper investigation or as a measure of penalty after conviction. in this case, ( i ) the investigation is over and ( ii ) the petitioner is not yet a convicted criminal. therefore, we do not think that any purpose will be served in allowing the special court to remand him to custody and then enabling him to move an application for bail. 23. in fact, the offences under the indian penal code alleged against the petitioner are punishable only with imprisonment for a period of upto 3 years. it is only the offences alleged under the unlawful activities ( prevention ) act, which are punishable with larger terms of imprisonment. if the offences under the ipc alone are taken into account, the petitioner has served, as an undertrial prisoner, more than half of the maximum period prescribed under the relevant provisions. therefore, this is not a 10 case where the petitioner should be allowed to be detained in custody, especially after having secured an order of discharge, rightly or wrongly. 24. in view of the above, we are of the considered opinion that the petitioner is entitled to be protected against arrest and detention in connection with the fir in chanmari case no. 1688 / 2019, re - registered as rc - 13 / 2019 / nia - guw [ kmss - cpi ( maoist ) ] by the nia. 25. therefore, the special leave petition is disposed of ( i ) confirming the judgment of the high court in all respects but ( ii ) directing the release of the petitioner on bail, pending trial, subject to such terms and conditions as may be imposed by the special court ( nia )

guwahati. there will be no order as to costs... j. ( v. ramasubramanian ).. j. ( pankaj mithal ) new delhi ; 02 - 2023 in crla no. 121 / 2021 passed by the gauhati high court ) akhil gogoi petitioner ( s ) versus the state ( national investigation agency ) & ors. respondent ( s ) ( [ heard by : hon. v. ramasubramanian and hon. pankaj mithal, jj. ] ( for admission and ia no. 38683 / 2023 - permission to file additional documents / facts / annexures ) date : 18 - 04 - 2023 this petition was called on for pronouncement of judgment today. for petitioner ( s ) mr. huzefa ahmadi, sr. adv. mr. ninad laud, adv. mr. santanu borthakur, adv. mr. ivo dcosta, adv. mr. karan mathur, adv. mr. sahil tagotra, aor for respondent ( s ) mr. tushar mehta, solicitor general mrs. aishwarya bhati, a. s. g. mr. kanu agarwal, adv. mr. shuvodeep raoy, adv. mrs. chitrangda rastrawara, adv. mr. rustam singh chauhan, adv. ms. b. l. n. shivani, adv. mr. arvind kumar sharma, aor hon'ble mr. justice v. ramasubramanian pronounced the judgment of the bench comprising his lordship and hon ble mr. justice pankaj mithal. 12 the special leave petition is disposed of in terms of the signed non - reportable judgment. the operative portion of the judgment reads as follows : 25. therefore, the special leave petition is disposed of ( i ) confirming the judgment of the high court in all respects but ( ii ) directing the release of the petitioner on bail, pending trial, subject to such terms and conditions as may be imposed by the special court ( nia ) guwahati. there will be no order as to costs. pending application ( s ), if any, shall stand disposed of. ( signed non - reportable judgment is placed on the file. ) 13

dipankar datta, j. these appeals, by special leave, challenge the judgment and order dated 28th august, 2009 rendered by the delhi high court ( hereafter the high court, for short ) while disposing of 5 ( five ) writ petitions, viz. wp ( c ) nos. 1854 and 1895 to 1898 of 1992. 2. the high court, for the reasons assigned in the impugned judgment, declared section 9 - d of the central signature not verified digitally signed by harshita uppal date : 2023. 02. 09 15 : 49 : 53 ist reason : excise and salt act, 1944 ( hereafter excise act, for short ) as intra vires while dismissing the writ petitions. 23. in course of hearing before us, mr. s. k. bagaria, learned senior counsel appearing for the appellants, did not even attempt to assail the reasons assigned by the high court for up - holding the constitutional validity of section 9 - d of the excise act. however, mr. bagaria argued that by a judgment and order dated 25th april, 2008, this court had remitted the matters back to the high court for consideration thereof afresh. in view of the judicial mandate, while deciding the writ petitions afresh on remand, the high court could not have limited its decision only to the issue relating to vires of section 9 - d. the writ petitions, as amended, also raised the issue as to how the essential pre - requisites of section 9 - d were breached by the department in the adjudication orders. the effect of the principles and pre - requisites laid down by the high court for invocation of section 9 - d vis - - vis the appellants case could not have been left undecided. 4. according to mr. bagaria, the principles laid down by the high court in the impugned judgment ought to have been applied to test the legality and correctness of the impugned action of the department and there being apparent breach of such principles at the end of the department, the high court committed an error of law in not deciding the other issues raised in the writ petitions. in other words, according to mr. 3 bagaria, the high court could not have stopped at deciding the issue of vires of section 9 - d by reading it down and summarizing the conditions precedent in - built into it and it was obligatory for the high court to decide the writ petitions in its totality ; and while so deciding, to declare whether

on the parameters of the conditions precedent in section 9 - d, as laid down in the impugned judgment, the petitioners were entitled to any relief or not. 5. mr. bagaria continued by submitting that the details of the earlier proceedings as well as all earlier orders including the orders passed by the customs, excise and gold control appellate tribunal ( hereafter tribunal, for short ) and this court were placed on record before this court by way of a status chart. such status chart was reproduced in the judgment and order dated 25th april, 2008 ; and after noting all these facts, the matters were remitted to the high court for deciding the writ petitions afresh. it is not as if the remand was only for deciding the issue of section 9 - d alone without deciding the remaining issues raised in the writ petitions. 6. the argument of mr. bagaria was that if the effect of the principles and pre - requisites laid down by the high court vis - - vis the appellants case were to be left undecided, the entire proceedings continuing since the last several years would 4 simply be rendered academic. he has, therefore, endeavoured to persuade us hold that the high court committed an error of law requiring correction by us. 7. mr. bagaria referred to the decisions of this court in state of up vs. mohammad nooh 1, calcutta discount company vs. ito2, institute of chartered accountants of india vs. l. k. ratna3 and andaman timber industries vs. cce4 in support of his arguments. 8. to appreciate the contentions of mr. bagaria, we need to take a quick look at the events preceding the impugned judgment and order. 9. the facts giving rise to the writ petitions reveal that huge demands of about rs. 94, 00, 00, 000 / - were raised by the department on the ground that the appellants and its job workers had manufactured deceptively similar versions of certain regular brands of cigarettes showing sale price whereas the same were sold through marketing chain at the higher price of normal brands and that the difference between the two prices was received by the appellants as flow - back through various super wholesale buyers. on 23 rd march, 1988 and 29th march, 1988, two show - cause notices 1 air 1958 sc 86 2 air 1961 sc 372 3 ( 1986 ) 4 scc 537 4 ( 2016 ) 15 scc 785 5 were issued by the department to the petitioners raising demands for alleged short

payment of excise duty. such notices primarily relied on the statements of 75 ( seventy - five ) witnesses to establish the recovery of prices higher than the declared prices and flow back of additional amounts to the appellants. pursuant to directions of the bombay high court, facility of cross - examination was extended in respect of only 29 ( twenty - nine ) witnesses and most of them, during cross - examination, denied any flow back to the appellants. the remaining statements remained untested but were relied upon by invoking section 9 - d of the excise act. grievance of the appellants in the writ petitions was that the parameters of section 9 - d had been completely ignored by the authorities. 10. since the show - cause notices were spread over a thousand pages and 600 ( six hundred ) of which were related to 63 ( sixty - three ) statements on which the department had placed reliance, the appellants on 6th march, 1991 made a request for cross - examination of 31 ( thirty - one ) witnesses. however, without attempting to follow the principles of natural justice, adjudication orders in respect of the show - cause notices had been passed by the adjudicating authority confirming the demands. 11. despite persistent requests, the facility of cross - examination was denied. even before the collector of central excise had passed any order confirming the demand of duty against them, the appellants had rushed to the high court to complain about the fairness of the procedure followed by the collector, more particularly, the denial of the opportunity to cross - examine. during the pendency of the proceedings, the collector had passed the final orders. by applying for amendment in each one of the writ petitions, permission was sought to assail the validity of the orders passed by the collector. such applications were disposed of by an order dated 28th october, 1992 with the observation that the order of the collector being appealable, the petitioners could pursue their remedy in appeal before the prescribed appellate authority. however, since there was also a challenge to the constitutional validity of section 9 - d of the excise act, the high court did not dispose of the writ petitions finally but intended to examine that limited question later. the petitioners had preferred appeals before the tribunal for the period relevant to wp ( c ) 1854 / 1992 and 1895 / 1992. the tribunal had disposed of the appeals in favour of the department, whereafter appeals were carried to this court. the appeals arising out of orders passed by the tribunal 7 relevant to wp ( c ) nos. 1896 / 1992 and 1898 / 1992 were dismissed

by an order dated 12 th september, 1997 of this court for failure to make the requisite pre - deposit. 12. the tribunal on 21st march, 2001 had allowed appeals filed by m / s j & k cigarettes and m / s. kanpur cigarettes pvt. ltd. these orders were carried in appeal by the department by filing appeals before this court under section 35l of the excise act, being civil appeal nos. 6398 - 6403 of 2002. 13. during the pendency of these 2 ( two ) appeals, the 5 ( five ) writ petitions came up for hearing before the high court on december 6, 2006. the common grievance of the petitioners was noted by the high court in paragraph 3, that they had invoked the writ jurisdiction feeling aggrieved by denial of adequate opportunity to cross - examine certain witnesses whose statements were recorded by the excise authorities in the course of investigation. the appellants had argued that the statements of such witnesses, obtained by the excise authorities in the course of their investigation, could only be used if they were given an opportunity to cross - examine the witnesses. 14. the high court in its order dated 6 th december, 2006 recorded that 2 ( two ) issues emerged for decision, viz., 1. whether this court would be justified in reading down or interpreting section 9 - d of the act as 8 suggested by counsel for the petitioner company when three appeals involving the validity of the orders passed by the collector and the cegat placing reliance upon section 9 - d of the act are pending before the supreme court? 2. if answer to question no. 1 is in the affirmative, whether section 9 - d suffers from any vice of unconstitutionality? 15. insofar as the first question is concerned, the high court, inter alia, held as follows : consequently, the writ petitions were dismissed with costs. 16. the judgment and order dated 6th december, 2006 was carried in appeal before this court in civil appeal nos. 3187 - 3189 / 2008. by an order dated 25 th april, 2008, this court disposed of the appeals by the following order : - 17. it was in terms of the order dated 25 th april, 2008 that the high court once again considered the challenge of the appellants to the vires of section 9 - d of the excise act. upon hearing learned counsel appearing for the parties, the high court in the impugned judgment and order dated 28 th august, 2009 recorded the following conclusions : - and

dismissed the writ petitions holding that the same had no merit. 18. bearing in mind these preceding facts and circumstances, we need to consider the contentions raised by 11 mr. bagaria. for the reasons that follow, the contentions do not commend acceptance. 19. this court while remitting the writ petitions to the high court for hearing the same afresh had taken note of the fact that, inter alia, the appellants appeals bearing civil appeal nos. 5134 - 34 / 1997 questioning the order of the tribunal confirming the demands against the appellants stood dismissed by an order of this court dated 12th september, 1997. 20. as noted above, the orders of the tribunal dated 21 st march, 2001 deciding the appeals in favour of the appellants, were the subject matter of challenge in this court at the instance of the department in civil appeal nos. 6398 - 6403 / 2002. such appeals were ultimately allowed by order dated 31st july, 2008 ; while directing a remand, it was observed by this court that the tribunal had not recorded any findings regarding the flow back. 21. at this juncture, from paragraph 1 ( xxiv ) of the statement of case filed on 10th december, 2012, we also note that pursuant to the remand ordered by this court as above, the tribunal disposed of the statutory appeals confirming the demands against kanpur cigarettes pvt. ltd. and j & k 12 cigarettes. civil appeal nos. 1533 - 1534 of 2011, carried before this court from the orders of the tribunal, were thereafter dismissed in view of inability to comply with the conditional order passed by this court directing issue of notice subject to deposit of the entire demand amount as confirmed. 22. there was one other appeal filed before this court but the same too had not been not pursued by the appellants and the job workers. 23. therefore, as on date of hearing of these civil appeals, there is no lis pending in respect of the concerned demands between the parties. 24. it would be appropriate to note the issues involved in the writ petitions. first, the vires of section 9 - d of the excise act was under challenge. secondly, even if section 9 - d were intra vires, whether the parameters thereof were completely ignored by the excise authorities. 25. the writ petitions were instituted before the high court way back in 1992 before any adjudication order was passed praying, inter - alia, for cross - examination of the remaining witnesses whose cross - examination had already been

permitted but who were not produced. pursuant to the liberty given by the high court, the appellants filed an application for 13 amendment mentioning in detail as to how and for what reasons invocation of section 9 - d by the commissioner was illegal and also challenging the vires of section 9 - d of the excise act. 26. though vehemently argued by mr. bagaria, there is no pending proceeding where the principles and prerequisites laid down by the high court for invocation of section 9 - d of the excise act vis - - vis the appellants case could be attracted for a decision. when this court by its order dated 25th april, 2008 remitted the matter to the high court for deciding the question of vires of section 9 - d, only the civil appeals carried from the orders of the tribunal by the department were pending. these appeals were ultimately allowed by this court vide its order dated 31 st july, 2008 and the matters remitted to the tribunal. these two appeals, on remand to the tribunal, have since been decided in favour of the department and against the appellants. as noticed above, the appeals carried to this court by the appellants from the orders of the tribunal confirming the demands against the appellants also stand dismissed. we are, therefore, left to wonder in which proceedings would the principles and prerequisites and / or the parameters of the conditions 14 precedent in section 9 - d, laid down by the high court, could at all be applied. 27. the contentions raised by mr. bagaria that the parameters of section 9 - d were completely ignored while the adjudication orders were made could have been regarded to be of some worth and engaged our attention if only any remedy by way of an appeal before the departmental authority or by a petition before any court were open to be pursued by the appellants as on date these civil appeals came up for consideration before us. what we find from the factual narrative is that although two proceedings were pending before the tribunal in view of the order of remand dated 31 st july, 2008 when the judgment and order dated 28 th august, 2009 under challenge came to be made, even those proceedings stand closed today after the appellants had approached this court and their civil appeals stood dismissed for non - deposit of the amount demanded. with the final decision on all the appeals arising from the orders of the tribunal being rendered against the appellants, there is no pending lis where the principles and conditions precedent could be applied. the endeavour of the appellants to have these appeals argued before us is, therefore, of purely academic interest and

would not serve any real purpose. 1528. while dismissing the civil appeals, we endorse the views of the high court insofar as it spurned the challenge of the appellants to the constitutional validity of section 9 - d of the excise act. 29. for unnecessarily protracting the proceedings before this court, although no lis survived for resolution, we impose costs of rs. 5, 00, 000 / - on the appellants. this amount is to be paid to any charitable organization involved in providing help, assistance and relief to children suffering from cancer. such costs shall be paid within a month from date. within two weeks thereof, proof of payment shall be produced before the registrar who shall satisfy himself that the recipient organization is, in fact, providing care to children suffering from cancer. in default thereof, the amount of costs shall be recovered as arrears of land revenue. j ( s. ravindra bhat ) j ( dipankar datta ) new delhi ; 9th february, 2023.

abhay s. oka, j. 1. leave granted. factual aspects2. the appellants are accused nos. 46 and 47 in fir no. 65 of 2018 registered on 23rd september 2018 at dumbriguda police station, district vishakhapatnam, in andhra pradesh. the appellants, along with other co accused, are being prosecuted for the offences signature not verified digitally signed by indu marwah punishable under section 120b read with section 302 of the indian date : 2023. 04. 17 17 : 33 : 53 ist reason : penal code, sections 18, 19, 20 and 39 of the unlawful activities 2 ( prevention ) act, 1967 ( for short the uapa ). the appellants are also charged with offences punishable under sections 4 and 5 of the explosives substances act, 1908 ( for short the explosives act ). 3. the incident is of 23rd september 2018. at about 12 : 10 hours, shri kidari sarveswara rao, a member of the legislative assembly and whip of the telugu desam party in legislative assembly and one shri siveri soma, a former mla belonging to telugu desam party, were killed near the village livitiputtu, pothangi panchayat within the jurisdiction of dumbriguda police station at visakhapatnam. this incident took place when both of them were proceeding to village sarai to attend a function. the allegation is that 45 accused persons who belonged to the communist party of india ( maoist ), a terrorist organisation notified in the first schedule of the uapa, stopped the convoy of vehicles of the aforesaid two leaders. the accused compelled them to get out of their cars. both of them were taken towards y junction. thereafter, the mla was taken to the left hand side of y junction and the ex mla was taken to the right hand side of y junction. both of them were killed by three gunshots. the personal secretary of the deceased sitting mla lodged fir on the same day in which he named 45 accused. earlier, investigation was carried out by a special investigation team, which was subsequently transferred to 3 the national investigation agency ( nia ). the case was registered by nia as rc 02 / 2018 nia / hyd on 6th december 2018. the appellants were arrested on 13th october 2018. a chargesheet was filed against them on 10th april 2019. it appears from

the said chargesheet that there are 79 accused though initially there were 85 accused. about 144 witnesses have been named in the charge sheet so far. the charge has not yet been framed. some of the accused are absconding. the appellants have been in custody for the last four years and seven months. submissions4. shri colin gonsalves, the learned senior counsel appearing for the appellants, has taken us through the relevant portions of the charge sheet filed against the present appellants. he pointed out that the recovery of landmine is shown at the instance of appellant no. 1 accused no. 46, which on the face of it, is highly suspicious. he pointed out that there is no recovery shown at the instance of the accused no. 47. he pointed out that the second allegation against accused no. 46 is that the call details record of accused nos. 46, 47 and 84 show that they were always in touch with each other which shows that they were partners in the criminal conspiracy. he pointed out that accused no. 84 has been granted bail by the high court. he 4 pointed out that another allegation against accused no. 46 is that he purchased huge quantity of medicines worth rs. 8, 000 / which were to be handed over to a maoist sent by accused no. 84. he submitted that there is no material against both the accused to show that they provided shelter and logistic support to the maoists as well as co accused and that they planted landmines. he pointed out that there is no evidence to show that the alleged landmines had any connection with the offence of killing the aforesaid two leaders. he would, therefore, submit that there is no prima facie evidence of the involvement of the two appellants in the offence. he relied upon a decision of this court in the case of union of india v. k. a. najeeb1. he submitted that even charges have not been framed. some of the accused are absconding. considering the fact that there are 144 prosecution witnesses, the trial is going to take years and therefore, continuing incarceration of the appellants will amount to a violation of their rights under article 21 of the constitution. 5. shri k. m. nataraj, learned asg appearing for the respondent, pointed out the memorandum dated 13 th october 2018 under section 27 of the indian evidence act, 1872 ( for short the evidence act ), which shows that a steel can weighing about 10 kg containing bolts, nuts and filled with explosive material and

connected to a detonator 1 ( 2021 ) 3 scc 713 5 through a wire was recovered at the instance of accused no. 46 near a kaccha road near village sarai where the deceased political leaders were to visit. he also pointed out that the landmine was planted with the object of killing the said two leaders. he pointed out that the disclosure statement made by accused no. 46 on 16 th january 2019 shows that he purchased a huge quantity of medicines worth rs. 8, 000 / and handed them over to a maoist. he pointed out that the appellants accused used different sims standing in the names of third parties to remain in touch with the co accused. as regards accused no. 47, he submitted that the disclosure statement of 13 th october 2018 records that both the appellants dug a pit near a kaccha road leading to sarai village and planted a landmine therein. he also pointed out that the accused nos. 46 and 47 were constantly in touch with each other on cell phones for 18 days prior to the incident and thereafter, the cell phone of accused no. 47 was switched off. shri nataraj further urged that both accused nos. 46 and 47 are involved in the offence and there is a strong prima facie material against them. he, therefore, submitted that in view of the proviso to sub section ( 5 ) of section 43d of uapa, the appellants are disentitled to bail as there is material on record to believe that the accusations against the appellants are prima facie true. our view6. we have given careful consideration to the submissions. we have perused the material against the appellants in the context of stringent provisions for the grant of bail incorporated under the proviso to sub section ( 5 ) of section 43d of uapa. we have perused the chargesheet filed against the appellants. the allegation against the first appellant accused no. 46 is that he provided shelter and logistic support to maoists and co accused for facilitating the offence of murder of the two leaders. the second allegation is that the present appellants planted landmines near the village where the programme was to be held. it is further alleged that appellant no. 1 accused no. 46 was in constant touch with accused no. 84, who in turn was in touch with the maoists. it is further alleged that the cell phone call record shows that the appellants were in touch with each other immediately after the incident. the accused no. 46 purchased

huge quantity of medicines and handed over the same to a maoist sent by accused no. 84. 7. the allegation against accused no. 47 is that he had association with accused no. 46. he was found in possession of certain pamphlets and literature of the terrorist organisation cpi ( maoist ). another allegation is that accused no. 47 had given shelter to communist party workers. 8. one of the allegations in the chargesheet is that the present appellants were in touch with each other for about 17 18 days before the incident. moreover, they were regularly conversing with accused no. 84, who in turn was communicating with the workers of the cpi ( maoist ) party. 9. we may note here that by the judgment and order dated 15 th december 2020 passed by a division bench of andhra pradesh high court in crl. appeal no. 229 of 2020, accused no. 84 has been granted bail. we have perused the judgment, which is produced along with ia no. 21015 of 2022. in the said judgment, the high court has considered the cdr records of the telephonic conversation between accused no. 46 and accused no. 84. in paragraph 9, the high court observed that accused no. 46 was an ex sarpanch of the village where accused no. 84 was teaching in a government school and therefore, it was natural that being an ex sarpanch, people were constantly approaching him. the calls were exchanged between these two accused on the date of the offence and after the offence. the high court observed that when an offence of such a nature happened in the vicinity, it is not unusual that accused no. 46, who was an ex sarpanch, would receive calls from many persons immediately after the commission of the offence. the high court further observed that 8 there was an allegation that medicines worth rs. 8, 000 / were purchased at the instance of the accused no. 84 which were handed over at his instance to one kiran, who was also a maoist. the high court observed that in the chargesheet filed against accused no. 46, it was noted that the said kiran was arrested on 18 th september 2018 and was in custody on the date of the offence. therefore, the high court opined that accused no. 84 was prima facie not involved in the offence and, at the highest, was guilty of an offence punishable under section 202 of ipc.

10. the grant of bail by the high court to accused no. 84 is very relevant in this case as in paragraph 17. 19 of the chargesheet filed against the present appellants, the allegation is that call detail records of accused nos. 46, 47 and 84 show that they were exchanging calls which indicates that they are the parties to the conspiracy. 11. as regards the allegation of purchase of medicines worth rs. 8, 000 / by accused no. 46, the prosecution has relied upon a disclosure memo dated 16th january 2019. in the disclosure memo, it is alleged that accused no. 46 disclosed that one kiran approached him in july 2018 to help him to purchase medicines. thereafter, he received a call from accused no. 84, who informed him that one person will give him a list of medicines and cash of rs. 10, 000 / and he 9 should help him to purchase medicines. the disclosure statement records that accused no. 46 helped that person to purchase medicines from a medical shop and he led the police party to the said medical shop. in the disclosure statement, he also stated that on 23 rd september 2018, he saw accused no. 47 along with one person ( kiran ) at a xerox shop at dumbriguda junction. accused no. 46 stated that he will be able to show the said shop, and accordingly, he showed the said shop. 12. we fail to understand how the purchase of medicines worth rs. 8, 000 / by accused no. 46 at the instance of accused no. 84 much before the incident has any connection with the incident which took place on 23rd september 2018. this is apart from the fact that accused no. 84 has been granted bail by the high court. 13. now we will have to decide whether the disclosure statement dated 16th january 2019 is admissible in evidence. it is necessary to advert to the law laid down by a bench of three hon ble judges of this court in the case of jaffar hussain dastagir v. state of maharashtra2. this court followed a decision of the privy council in the case of pulukuri kottaya v. king emperor3 which is a locus classicus. in paragraph no. 5 of the decision in the case of jaffar, this 2 ( 1969 ) 2 scc 872 3 ( 1946 ) scc online privy council 47 10 court held thus : 14. as held by

this court, section 27 of the evidence act is an exception to the general rule under section 25 that a confession made by an accused to a police officer is not admissible in evidence. the first condition for the applicability of section 27 is that the information given by the accused must lead to the discovery of the fact, which is the direct outcome of such information. only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused. now looking at the discovery memo dated 16th january 2019, at the highest, it means that accused no. 46 showed the shop from which the medicines were purchased. thus, he led the police to the shop. there was no discovery of any fact as a result of the information supplied by accused no. 46. the same is the case with the other allegation that accused no. 46 showed a xerox shop where accused no. 47 and one kiran were allegedly standing on 23rd september 2018. therefore, the statements of accused no. 46 that he would show the medical shop and the xerox shop may not be, prima facie, admissible under section 27 of the evidence act. moreover, as noted in the order of the high court granting bail to 12 accused no. 84, the said kiran, who was allegedly standing with accused no. 47 near the xerox shop on 23 rd september 2018 was already in custody from 18 th september 2018 and he continued to be in custody even on 23rd september 2018. 15. there is one more crucial aspect. a statement of one g. narasinga rao, who was allegedly running the said medical shop has been recorded during the investigation. in the statement, he has stated that on 16th january 2019, nia team visited his shop and inquired about the sale of medicines involving a large amount in july 2018 and the team brought accused no. 46 with them. this shows that the nia team was already aware of the location of the shop from which a large quantity of medicines was allegedly purchased by accused no. 46 in july 2018. 16. now, we come to the material to show that there was a recovery of landmine at the instance of accused no. 46. it must be noted here that it is not the case of the prosecution that the recovery of landmine was at the instance of the accused no. 47. the recovery panchama ( annexure a 1 ) to ia no. 74099 of 2022 is styled as mediators report and seizure

panchnama. it records that at about 4 pm on 13 th october 2018, the mediators were present at livitiputtu village with asp amitabh for preparing the mediators report and seizure panchanama. it is recorded in the panchnama that asp amitabh, an 13 ips officer, along with other 9 or 10 police officials with a bomb disposal team, visited livitiputtu village. on the way, they saw four persons, including the accused nos. 46 and 47, who were holding plastic bags. when they tried to flee, the police chased them and caught hold of them. in the same panchnama, a long statement of accused no. 46 is recorded, which is in the nature of a confessional statement. there is also a confessional statement of accused no. 47 in the same panchnama. prima facie, these statements may not be admissible in evidence being hit by section 25 of the evidence act. going by the mediators report and seizure panchnama, the appellants gave confessional statements immediately after the police caught hold of them even before their arrest was recorded. therefore, prima facie, it creates a doubt about the genuineness of the statements. the material portion of the mediators report and seizure panchnama appears after the confessional statement of the accused no. 46. it reads thus : 17. it is pertinent to note that a long confessional statement of accused no. 46 has been recorded within inverted commas in the said document, and thereafter, the aforesaid portion has been written. it is not noted in the confessional statement of accused no. 46 that he stated that he would show the place where he had planted the landmine. if accused no. 46 had made such a statement leading to the discovery of the landmine, the discovery of the fact that the landmine was planted by accused nos. 46 at a particular place could have been proved, provided the landmine was to be used in the offence. however, there is no such confessional statement of accused no. 46 recorded that he will show the place where landmine was planted by him. the panchnama shows that the accused no. 46 took them to a place and showed landmine. there is no confessional statement made by him giving information that he is in a position to show the place where he had planted landmine

. therefore, prima facie, the mediators report and seizure panchnama is not helpful to the prosecution in proving that the landmine was discovered at the instance of the accused no. 46. 18. as can be seen from the chargesheet, in paragraph 17. 32, there were three material allegations against accused no. 46. the first was of plantation of a landmine which we have already discussed. the second one was that he provided shelter and logistic support to the maoists for facilitating the commission of the offence. the third circumstance that he purchased medicines worth rs. 8, 000 / as per the suggestion of accused no. 84 will also have to be kept out of consideration for the reasons already recorded. in paragraph 5 of the additional affidavit of the respondent, the material against the appellants has been set out in a tabular form. in the tabular form, it is not mentioned that there are statements of the witnesses who had seen accused nos. 46 or 47 giving shelter to the maoists. in any case, accused no. 46 and 47 were not present at the time of the commission of the offence. therefore, we cannot form an opinion that there are reasonable grounds for believing that the accusations against accused no. 46 are prima facie proved. 19. coming to allegations against accused no. 47, we may note here that his confessional statement recorded under the mediators report and seizure panchnama is not admissible evidence as he has not disclosed any fact that led to any discovery. in his statement, it is recorded that he was carrying maoist literature and banners. it is 16 recorded in the panchnama that eight brochures, two banners, and one landmine, along with electric wire and detonators, were seized from four persons. it is not specifically mentioned in the panchnama that the brochures and banners were recovered from accused no. 47. the prosecution case that accused no. 47, with one kiran, was found standing at a particular place on 23 rd september 2018 appears to be very doubtful, as noted by us earlier. then what is against accused no. 47 is that he was in touch with accused no. 46 on the telephone. the same was the allegation against accused no. 84, who has been enlarged on bail. 20. sub section ( 5 ) of section 43d of the uapa reads thus : 21. we have examined material relied upon against the appellants in paragraph 5 of

the additional affidavit of the respondent as well as the 17 chargesheet. taking the material against the appellants as it is and without considering the defence of the appellants, we are unable to form an opinion that there are reasonable grounds for believing that the accusations against the appellants of commission of offence under the uapa are prime facie true. hence, the embargo on the grant of bail under proviso to sub section ( 5 ) of section 43d will not apply in this case. we, however, make it clear that the findings recorded in this judgment are only prima facie observations recorded for the limited purposes of examining the case in the light of the proviso to sub section ( 5 ) of section 43d of the uapa. the trial shall be conducted uninfluenced by these observations. 22. as narrated earlier, the appellants are in custody for four and half years. the charge has not been framed and the prosecution proposes to examine more than 140 witnesses. some of the accused are absconding. thus, there is no possibility of the trial commencing in the near future. 23. it is obvious that while granting bail, stringent conditions will have to be imposed. we propose to leave it to the learned special judge to impose appropriate conditions. 24. accordingly, we set aside the impugned orders. we direct the respondent to ensure that appellants are produced before the learned special judge for the trial of nia cases at vijayawada within a 18 maximum period of one week from today. the learned special judge shall release the appellants on bail on appropriate conditions determined by him after hearing the appellants and respondent. the appeal is, accordingly, allowed.. j. ( abhay s. oka ).... j. ( rajesh bindal ) new delhi ; april 17, 2023.

m. r. shah, j. 1. feeling aggrieved and dissatisfied with the impugned judgment ( s ) and order ( s ) passed by signature not verified digitally signed by the high court for the state of telangana at neetu sachdeva date : 2023. 05. 12 15 : 47 : 39 ist reason : page 1 of 16 hyderabad in criminal petition nos. 1146 / 2021 and 1147 / 2021, by which, the high court has allowed the said bail applications and has directed to enlarge respective respondent no. 1 on bail in connection with the offences under the prevention of money laundering act, 2002 ( hereinafter referred to as the pml act, 2002 ) investigated by the enforcement directorate, hyderabad in f. no. ecir / hyzo / 36 / 2020 on the file of metropolitan sessions judge, hyderabad, the directorate of enforcement has preferred the present appeals. 2. that an fir no. 12 / 2019 dated 10. 04. 2019 was registered by the economic offences wing, bhopal, naming about 20 persons / companies as accused for the offences punishable under sections 120 - b, page 2 of 16 420, 468 and 471 of ipc, section 66 of the information technology act, 2000 and section 7 ( c ) read with section 13 ( 2 ) of the prevention of corruption act, 1988. it was found in the preliminary enquiry that e - tender nos. 91, 93, and 94 for total works amounting to rs. 1769. 00 crores of madhya pradesh water corporation were tempered to change the price bid of m / s gvpr engineers limited, m / s the indian hume pipe company limited and m / s imc ( sic ) project india limited to make them the lowest bidders. subsequent to the registration of the fir, economic offences wing, bhopal conducted investigation and filed the chargesheet before the competent court on 04. 07. 2019. that on study of chargesheet, it was found that the accused have also committed the offences page 3 of 16 under the pml act, 2002 as the offences for which they were chargesheeted, namely, sections 120 - b, 420, 468 and 471 of ipc and section 7 read with section 13 ( 2 ) of the pc act, are also scheduled offences and therefore, the enforcement directorate, hyderabad had initiated money laundering investigation in

the f. no. ecir / hyzo / 36 / 2020. that respective respondent no. 1 herein in respective appeals were arrested on 19. 01. 2021, therefore, they filed the present bail applications before the high court to enlarge them on bail in connection with the aforesaid investigation / case being investigated by the enforcement directorate. by the impugned orders, the high court has directed to enlarge respondent no. 1 in respective appeals on page 4 of 16 bail. the impugned orders passed by the high court enlarging respondent no. 1 in respective appeals on bail in the case being investigated by the enforcement directorate, hyderabad, are the subject matters of present appeals. 3. shri k. m. nataraj, learned asg, has appeared on behalf of the appellant enforcement directorate and shri rakesh khanna and shri aman lekhi, learned senior advocates have appeared on behalf of respective respondent no. 1. 3. 1 shri nataraj, learned asg appearing on behalf of the enforcement directorate has submitted that in the facts and circumstances of the case the high court has seriously erred in enlarging respective respondent no. 1 accused on bail. it is page 5 of 16 submitted that while enlarging respective respondent no. 1 accused on bail the high court has not properly appreciated section 45 of the pml act, 2002. 3. 2 it is further submitted that the high court has not properly appreciated and / or considered the seriousness of the offences which are scheduled offences under the pml act, 2002. 3. 3 it is submitted that the high court has enlarged respective respondent no. 1 on bail solely on the ground that the investigation has been completed and the chargesheet has been filed. it is submitted that however, the high court has not properly appreciated the fact that the investigation by the enforcement directorate is still going on and therefore, it is page 6 of 16 wrong to say that the investigation has been completed. 4. while opposing the present appeals, learned senior advocate ( s ) appearing on behalf of respective respondent no. 1 have vehemently submitted that in the facts and circumstances of the case, the high court has not committed any error in directing to enlarge the accused on bail. 4. 1 it is submitted that in the present case so far as the impugned fir is concerned i. e., for the predicated offences others accused have been acquitted / discharged. 4. 2 it is further submitted that as the investigation is over and the chargeshee

##t has been filed, the high court has rightly enlarged the accused respective respondent no. 1 on bail. it is submitted that as the page 7 of 16 accused are on bail since march, 2021, the impugned orders passed by the high court may not be interfered by this court at this stage. 5. we have heard learned counsel appearing on behalf of the respective parties at length. 6. at the outset, it is required to be noted that respective respondent no. 1 accused are facing the investigation by the enforcement directorate for the scheduled offences and for the offences of money laundering under section 3 of the pml act punishable under section 4 of the said act. an enquiry / investigation is still going on by the enforcement directorate for the scheduled offences in connection with fir no. 12 / 2019. once, the enquiry / investigation against respective respondent no. 1 is going on for the page 8 of 16 offences under the pml act, 2002, the rigour of section 45 of the pml act, 2002 is required to be considered. section 45 of the pml 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 page 9 of 16 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 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 page 10 of 16 procedure, 1973 ( 2 of 1974 ) or any other law for the time being in force on granting of bail. by the impugned judgment ( s ) and order ( s ) and while granting bail, the high court has not considered the rigour of section 45 of the pml act, 2002. 6. 1 even otherwise, the high court has not at all considered the nature of allegations and seriousness of the offences alleged of money laundering and the offences under the pml 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. 6. 2 now so far as the submissions on behalf of the respective respondent no. 1 that respective respondent no. 1 were not named page 11 of 16 in the fir with respect to the scheduled offence ( s ) and / or that all the other accused are discharged / acquitted in so far as the predicated offences are concerned, merely because other accused are acquitted / discharged, it cannot be a ground not to continue the investigation in respect of respective respondent no. 1. an enquiry / investigation is going on against respective respondent no. 1 with respect to the scheduled offences. therefore, the enquiry / investigation for the scheduled offences itself is sufficient at this stage. 6. 3 from the impugned judgment ( s ) and order ( s ) passed by the high court, it appears that what is weighed with the high court is that chargesheet has been filed against respective respondent no. 1 accused and therefore, the page 12 of 16 investigation is completed. however, the high court has failed to notice and appreciate that the investigation with respect to the scheduled offences under the pml act, 2002 by the enforcement directorate is still going on. merely because, for the predicated offences the chargesheet might have been filed it cannot be a ground to release the accused on bail in connection with the scheduled offences under the pml act, 2002. investigation for the predicated offences and the investigation by the enforcement directorate for the scheduled offences under the pml act are different

and distinct. therefore, the high court has taken into consideration the irrelevant consideration. the investigation by the enforcement page 13 of 16 directorate for the scheduled offences under the pml act, 2002 is till going on. 7. as observed hereinabove, the high court has neither considered the rigour of section 45 of the pml act, 2002 nor has considered the seriousness of the offences alleged against accused for the scheduled offences under the pml act, 2002 and the high court has not at all considered the fact that the investigation by the enforcement directorate for the scheduled offences under the pml act, 2002 is still going on and therefore, the impugned orders passed by the high court enlarging respective respondent no. 1 on bail are unsustainable and the matters are required to be remitted back to the high court for afresh decision on the bail applications after page 14 of 16 taking into consideration the observations made hereinabove. 8. in view of the above and for the reasons stated above, both these appeals succeed. the impugned judgment ( s ) and order ( s ) passed by the high court in criminal petition nos. 1146 / 2021 and 1147 / 2021 enlarging respective respondent no. 1 accused in respective appeals on bail are hereby quashed and set aside. that respective respondent no. 1 now to surrender before the competent court having jurisdiction or before the concerned jail authority within a period of one week from today. the matters are remitted back to the high court to consider the bail applications afresh in light of the observations made hereinabove and after respective respondent no. 1 surrenders page 15 of 16 within a period of one week as ordered above. present appeals are accordingly allowed to the aforesaid extent.. j. [ m. r. shah ]. j. [ c. t. ravikumar ] new delhi ; may 12, 2023 page 16 of 16

rajesh bindal, j. 1. this order will dispose of a bunch of appeals as common questions of law and fact are involved. the facts of the cases have been noticed separately. facts : civil appeal no. 1548 of 2023 signature not verified ( delhi development authority vs. surender singh digitally signed by indu marwah date : 2023. 04. 11 & ors ) 17 : 38 : 57 ist reason : page 1 of 13 civil appeal no. 1548 of 2023, etc. 2. as pleaded, notification under section 4 of the land acquisition act, 1894 ( for short, the act " ) was issued on 21. 03. 2003 seeking to acquire land for rohini residential scheme at delhi. on 19. 3. 2004, notification under section 6 of the act was issued. the land acquisition collector announced the award under section 11 of the act assessing compensation for the acquired land on 12. 7. 2005. the compensation amount of 80, 40, 76, 004 / - for the acquisition of the land was deposited by the state with the land acquisition collector. 3. a writ petition was filed in the high court invoking section 24 ( 2 ) of the right to fair compensation and transparency in land acquisition, rehabilitation and resettlement act, 2013 ( for short 2013 act ) claiming that the acquisition in question has lapsed since neither possession has been taken nor the compensation therefor has been paid. the definite stand of the state before the high court was that the possession of the land was taken on 31. 08. 2005 and handed over to the delhi development authority for planned development of delhi. the title of the writ petitioners was in dispute. hence, the compensation could not be paid to them. it was deposited with the land acquisition collector. the high page 2 of 13 civil appeal no. 1548 of 2023, etc. court after relying upon the judgment of this court in govt. of nct of delhi vs. manav dharma trust and another s ( 2017 ) 6 scc 751 held that petitioner therein had locus to file the writ petition though not being the recorded owner. it further relied upon the judgment of this court in pune municipal corporation & another v. harakchand misirimal solanki & ors. ( 2014 ) 3 scc 183 and held that the acquisition has lapsed as the compensation had not been paid to the land owners. though, the issue of title of the land was left open. civil appeal

no. 1572 of 2023 ( delhi development authority vs. ram singh & ors. ) 4. from the facts as are available on record, it is evident that notification under section 4 of the act was issued on 23. 09. 1989 proposing to acquire the land situated in the revenue estate of village ghonda gujran khadar, shahdra, delhi, for the purpose of planned development of delhi. notification under section 6 of the act was issued on 20. 06. 1990 and award bearing no. 8 / 92 - 93 was announced by the land acquisition collector on 19. 06. 1992. page 3 of 13 civil appeal no. 1548 of 2023, etc. 5. a writ petition was filed in the high court invoking section 24 ( 2 ) of the 2013 act claiming that the acquisition in question has lapsed as neither possession has been taken nor the compensation therefor has been paid. the appellant s stand before the high court was that the possession of the land was taken on 21. 03. 2007 and handed over to the delhi development authority for planned development of delhi. the compensation could not be paid to the land owners as they never claimed the same. 6. the high court relying upon the judgment of this court in pune municipal corporation s case ( supra ) held that the acquisition has lapsed as the compensation was not paid to the land owners. civil appeal no. 1549 of 2023 ( govt. of nct delhi & anr. vs. gyan chand & ors. ) 7. from the facts as are available on record, it is evident that notification under section 4 of act seeking to acquire the land situated in revenue estate of villages tughlakabad, delhi, was issued on 25. 01. 1965. the same was followed by notification issued under section 6 of the act on 13. 02. 1969. page 4 of 13 civil appeal no. 1548 of 2023, etc. the award bearing no. 50 - a / 1969 - 70 for the same was announced by the land acquisition collector on 04. 11. 1981. 8. a writ petition was filed in the high court invoking section 24 ( 2 ) of the 2013 act claiming that the acquisition in question has lapsed since neither the possession has been taken nor the compensation therefor has been paid. the appellant s stand before the high court was that the possession of the land was taken on 23. 11. 1981 and handed over to the delhi development authority for planned development of del

##hi. the compensation could not be paid to the land owners as they never claimed the same. it was further submitted that the entire record pertaining to the compensation was not traceable being old. 9. the high court relying upon the judgment of this court in pune municipal corporation s case ( supra ) held that the acquisition has lapsed as the compensation was not paid to the land owners. civil appeal no. 1547 of 2023 ( delhi development authority vs. veena jain & ors. ) 10. from the facts of the case as are available on record, it is evident that vide notification dated 23. 06. 1989 issued page 5 of 13 civil appeal no. 1548 of 2023, etc. under section 4 of the act large chunk of the land including the land of petitioner comprised in khasra no. 490, measuring 1 bigha 1 biswa situated in revenue estate of village madan pur khadar, new delhi was sought to be acquired for planned development of delhi. it was followed by the notification issued under section 6 read with section 17 of the act. the award bearing no. 20 / 92 - 93 was announced by the land acquisition collector / collection ( ds ) on 19. 06. 1992. 11. a writ petition was filed in the high court invoking section 24 ( 2 ) of the 2013 act claiming that the acquisition in question has lapsed as neither the possession has been taken nor the compensation therefor has been paid. the appellant s stand before the high court was that the possession of the land was taken on 03. 12. 2012 and handed over to the delhi development authority for planned development of delhi. the compensation was sent to the reference court under section 30 - 31 of the act on account of dispute of apportionment amongst different owners. 12. the high court relying upon the judgment of this court in manav dharma trust and another s case ( supra ) held that the petitioner has locus to file the writ petition though page 6 of 13 civil appeal no. 1548 of 2023, etc. not being the recorded owner. the high court further relied upon the judgment of this court in pune municipal corporation s case ( supra ) and held that the acquisition has lapsed as the compensation was not paid to the land owners. the question of title of subject land was left open to be decided by the appropriate forum. arguments raised by the counsels : 13. the arguments raised by learned counsels appearing for the appellants are that in view of the

constitution bench judgment of this court in indore development authority vs. manoharlal and others ( 2020 ) 8 scc 129 whereby earlier judgment of this court in pune municipal corporation & anr. s case ( supra ) was overruled, the orders passed by the high court, in aforesaid civil appeals are liable to be set aside. it was opined by the constitution bench that compliance of either of the two conditions i. e. taking over of possession of the land or payment of compensation, is good enough to sustain the acquisition. from the undisputed facts available on record it is evident that in all cases, the possession of land in dispute page 7 of 13 civil appeal no. 1548 of 2023, etc. was taken after the acquisition was complete and awards were announced. 14. additional arguments raised in civil appeal nos. 1547 & 1548 of 2023 civil appeal no. 1547 / 2023 are that the judgment in manav dharma trust and another s case ( supra ) was overruled by this court in subsequent judgment in shiv kumar vs. union of india, ( 2019 ) 10 scc 229 and the aforesaid civil appeals are not maintainable. 15. on the other hand, the arguments raised by learned counsel for the respondents are that the writ petitions having been decided on the basis of law as existing on the date of decision by the high court cannot be set aside on the basis of the subsequent judgment of this court. the high court has held that compensation having not been paid, as per the interpretation of section 24 ( 2 ) of the 2013 act by this court in pune municipal corporation s case ( supra ), the acquisition proceedings lapsed. it is a matter of fact which has been noticed in the order passed by the high court that the possession of the land had already been taken by the authority concerned. page 8 of 13 civil appeal no. 1548 of 2023, etc. 16. heard learned counsel appearing for the parties and perused the records. observations : 17. the constitution bench of this court in indore development authority's case ( supra ) had opined that satisfaction of either of the conditions namely either taking possession of the acquired land or payment of compensation to the landowners would be sufficient to save the acquisition from being lapsed in terms of section 24 ( 2 ) of the 2013 act. various questions posed before the constitution bench of this court were also answered. relevant para - nos. 362 and 366 are extracted below : civil appeal no. 1548 of

2023, etc. compensation has to be determined under the provisions of the 2013 act. 366. 2. in case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under section 24 ( 1 ) ( b ) of the 2013 act under the 1894 act as if it has not been repealed. 366. 3. the word or used in section 24 ( 2 ) between possession and compensation has to be read as nor or as and. the deemed lapse of land acquisition proceedings under section 24 ( 2 ) of the 2013 act takes place where due to inaction of authorities for five years or more prior to commencement of the said act, the possession of land has not been taken nor compensation has been paid. in other words, in case possession has been taken, compensation has not been paid then there is no lapse. similarly, if compensation has been paid, possession has not been taken then there is no lapse. ( emphasis supplied ) 366. 4. the expression paid in the main part of section 24 ( 2 ) of the 2013 act does not include a deposit of compensation in court. the consequence of non - deposit is provided in the proviso to section 24 ( 2 ) in case it has not been deposited with respect to majority of landholdings then all beneficiaries ( landowners ) as on the date of notification for land acquisition page 10 of 13 civil appeal no. 1548 of 2023, etc. under section 4 of the 1894 act shall be entitled to compensation in accordance with the provisions of the 2013 act. in case the obligation under section 31 of the land acquisition act, 1894 has not been fulfilled, interest under section 34 of the said act can be granted. non - deposit of compensation ( in court ) does not result in the lapse of land acquisition proceedings. in case of non - deposit with respect to the majority of holdings for five years or more, compensation under the 2013 act has to be paid to the landowners as on the date of notification for land acquisition under section 4 of the 1894 act. 366. 5. in case a person has been tendered the compensation as provided under section 31 ( 1 ) of the 1894 act, it is not open to him to claim that acquisition has lapsed under section 24 ( 2 ) due to non - payment or non - deposit of compensation in court. the obligation to pay is complete by tendering the amount under section 31 ( 1 ). the landowners who had refused to accept compensation

or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under section 24 ( 2 ) of the 2013 act. 366. 6. the proviso to section 24 ( 2 ) of the 2013 act is to be treated as part of section 24 ( 2 ), not part of section 24 ( 1 ) ( b ). page 11 of 13 civil appeal no. 1548 of 2023, etc. 366. 7. the mode of taking possession under the 1894 act and as contemplated under section 24 ( 2 ) is by drawing of inquest report / memorandum. once award has been passed on taking possession under section 16 of the 1894 act, the land vests in state there is no divesting provided under section 24 ( 2 ) of the 2013 act, as once possession has been taken there is no lapse under section 24 ( 2 ). 366. 8. the provisions of section 24 ( 2 ) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1 - 1 - 2014. the period of subsistence of interim orders passed by court has to be excluded in the computation of five years. 366. 9. section 24 ( 2 ) of the 2013 act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. section 24 applies to a proceeding pending on the date of enforcement of the 2013 act i. e. 1 - 1 - 2014. it does not revive stale and time - barred claims and does not reopen concluded proceedings nor allow landowners to page 12 of 13 civil appeal no. 1548 of 2023, etc. question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition. 18. it is the undisputed fact on the record, as has been noticed in the impugned orders passed by the high court in the aforesaid civil appeals, the possession of the land was taken over by the land acquisition collector and handed over to delhi development authority. hence, one of the conditions being satisfied, we need not examine any other argument. 19. keeping in view the aforesaid fact and the law laid down by the constitution bench of this court in indore development authority s case ( supra ), in our opinion the orders passed by the high court cannot be legally sustained and the same are accordingly set aside. the

appeals are allowed. the writ petitions filed by the respondents before the high court are ordered to be dismissed. j. [ abhay s. oka ]. j. [ rajesh bindal ] new delhi 11. 04. 2023. page 13 of 13

ahsanuddin amanullah, j. heard learned counsel for the parties. 2. the present criminal appeal, under the supreme court ( enlargement of criminal appellate jurisdiction ) act, 1970, is directed against the final judgment and order dated 20. 10. 2010 in crl. a. no. 1952 / 2005 signature not verified digitally signed by sonia bhasin date : 2023. 09. 06 14 : 36 : 39 ist ( hereinafter referred to as the impugned judgment ) reason : 4. according to the prosecution story, on 03. 01. 2002 at about 4 : 30 p. m., an unidentified dead body of a male was found by the complainant ( pw1 ) in his field leading to institution of complaint with police. later, the body was identified to be that of one krishnappa. the allegation is that accused no. 1 ( appellant herein ) along with accused no. 2 with a common intention killed the deceased. the motive statedly being that the 1 302. punishment for murder. whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. 3 deceased had developed illicit intimacy with the appellant s sister. it is alleged that both accused had further tried to destroy evidence by setting fire to the dead body by pouring petrol. the prosecution examined 12 witnesses including the complainant / pw1 and one of the attestors to the inquest. 5. upon trial, the principal sessions judge, bangalore rural district, bangalore by judgment and order dated 09. 06. 2005 acquitted the accused of offences under sections 302 and 201 of the ipc, holding that the prosecution had failed to prove that the deceased was last seen in the company of the accused and had also failed to prove the extra - judicial confession. 6. aggrieved by the judgment and order dated 09. 06. 2005, the state of karnataka filed criminal appeal no. 1952 of 2005 before the high court. the high court vide the impugned judgment reversed the order of acquittal passed by the trial court qua the appellant whereas the appeal against the co - accused - accused no. 2 4 ( hereinafter referred to as a2 ) was dismissed. the same is under challenge in the present appeal by the appellant. submissions of the appellant : 7. learned counsel for the appellant submitted that the ground for acquittal by the trial court is based on evidence and the reasons given are cogent for holding that the prosecution had failed to prove its

case against the accused under sections 302 and 2012 of the ipc. it was further submitted that the high court erred in reversing the order of acquittal against the 2 201. causing disappearance of evidence of offence, or giving false information to screen offender. whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, if a capital offence. shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine ; if punishable with imprisonment for life. and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine ; if punishable with less than ten years'imprisonment. and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one - fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both. illustration a, knowing that b has murdered z, assists b to hide the body with the intention of screening b from punishment. a is liable to imprisonment of either description for seven years, and also to fine. 5 appellant whereas not interfering with the acquittal of the a2 as, basically, the role ( s ) assigned to both is the same. 8. learned counsel for the appellant submitted that in the charge framed by the trial court, it was clearly mentioned that the specific allegation was that a2 was the person who had come to the house of the deceased two days prior to the fateful incident and taken him away on the pretext that the appellant s father wanted to meet him whereas during deposition, pw3 and pw8 have stated that it was the appellant who had come and taken the deceased with him. 9. learned counsel submitted that this very basic aspect which completely changes the theory of last seen cannot result in conviction of the appellant as that is the sole ground for reversal of acquittal by the high court. it was submitted that the only material to hold that the deceased was last seen in the company of

the appellant, by the high court, was the testimony of 6 pw10, that too based on the extra - judicial confession by the appellant before the police, when pw10 during trial had turned hostile. thus, it was contended that such finding and reliance on the testimony of pw10 is erroneous. it was submitted that even the alleged recovery is not proved and most importantly there was no forensic examination conducted to prove that the blood belonged to the deceased. the theory of the appellant buying petrol from pw10, who has turned hostile, is also, according to learned counsel for the appellant, enough to entitle the appellant to benefit of doubt. 10. it was further submitted that even the deceased s wife stated in her evidence that there was cordial relationship between the appellant and family of the deceased and thus, the theory of strong animosity also stands negated. 11. learned counsel submitted that had there been such strong enmity between the two sides, there was no 7 occasion for the deceased to have accompanied the appellant to his house and that too late in the night. it was urged that a strong pointer to the falsity of the allegation ( s ) is the fact that the deceased s wife admitted during deposition that even when the deceased did not return for two - three days, she had not made any complaint and a very vague reason for such conduct is given saying that even in the past he ( the deceased ) used to go away for two - three days. submissions of the respondent - state : 12. learned counsel for the state, on the other hand, in support of the judgement impugned submitted that there was a strong motive for the appellant to kill the deceased. learned counsel for the state relied upon the decision of this court in state of rajasthan v kashi ram, ( 2006 ) 12 scc 254, the relevant being at paragraphs 19 - 23, for the proposition that once the accused is found to be the person with whom the deceased was last seen, the onus is on the accused to 8 explain as to where the victim had gone or how the incident occurred : 20. in joseph v. state of kerala [ ( 2000 ) 5 scc 197 : 2000 scc ( cri ) 926 ] the facts were that the deceased was an employee of a school. the appellant representing himself to be the husband of one of the sisters of gracy, the deceased, went to st. mary's convent where she was employed and on a false pretext that

her mother was ill and had been admitted to a hospital took her away with the permission of the sister in charge of the convent, pw 5. the case of the prosecution was that later the appellant not only raped her and robbed her of her ornaments, but also laid her on the rail track to be run over by a passing train. it was also found as a fact that the deceased was last seen alive only in his company, and that on information furnished by the appellant in the course of investigation, the jewels of the deceased, which were sold to pw 11 by the appellant, were seized. there was clear evidence to prove that those jewels were worn by the deceased at the time when she left the convent with the appellant. when questioned under section 313 crpc, the appellant did not 3 there is a typographical error in the text of the judgment. 9 even attempt to explain or clarify the incriminating circumstances inculpating and connecting him with the crime by his adamant attitude of total denial of everything. in the background of such facts, the court held : ( scc p. 205, para 14 ) such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed ( see state of maharashtra v. suresh [ ( 2000 ) 1 scc 471 : 2000 scc ( cri ) 263 ] ). that missing link to connect the accused - appellant, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of gracy. 21. in ram gulam chaudhary v. state of bihar [ ( 2001 ) 8 scc 311 : 2001 scc ( cri ) 1546 ] the facts proved at the trial were that the deceased boy was brutally assaulted by the appellants. when one of them declared that the boy was still alive and he should be killed, a chhura - blow was inflicted on his chest. thereafter, the appellants carried away the boy who was not seen alive thereafter. the appellants gave no explanation

as to what they did after they 10 took away the boy. the question arose whether in such facts section 106 of the evidence act applied. this court held : ( scc p. 320, para24 ) in the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. when the abductors withheld that information from the court, there is every justification for drawing the inference that they had murdered the boy. even though section 106 of the evidence act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. the appellants by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference. 22. in sahadevan v. state [ ( 2003 ) 1 scc 534 : 2003 scc ( cri ) 382 ] the prosecution established the fact that the deceased was seen in the company of the appellants from the morning of 5 - 3 - 1985 till at least 5 p. m. on that day when he was brought to his house, and thereafter his dead body was found in the morning of 6 - 3 - 1985. in the background of such facts the court observed : ( scc p. 543, para 19 ) therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner vadivelu parted company with them. this is on the principle 11 that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. in the instant case the appellants have failed to discharge this onus. in their statement under section 313 crpc they have not taken any specific stand whatsoever. 23. it is not necessary to multiply with authorities. the principle is well settled. the provisions of section 106 of the evidence act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. he must furnish an explanation which appears

to the court to be probable and satisfactory. if he does so he must be held to have discharged his burden. if he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by section 106 of the evidence act. in a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. it lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure 12 to adduce any explanation, as an additional link which completes the chain. the principle has been succinctly stated in naina mohd., re. [ air 1960 mad 218 : 1960 cri lj 620 ] analysis, reasoning and conclusion : 13. having bestowed thoughtful consideration to the rival submissions and taking into account the totality of the circumstances, this court finds that the impugned judgment cannot be sustained. the fact that there is major discrepancy in the charge framed by the court and the statement of the witnesses - the specific allegation that a2 was the one who had taken away the deceased from his house, whereas during deposition the deceased s wife and his brother have stated that it was the appellant who had taken away the deceased is enough to raise doubts with regard to the veracity and authenticity of such statements. furthermore, the fact that the deceased, late at night, agreed to go to the house of the appellant, when seen in the backdrop of the allegation that there was strong animosity between the two, appears to be highly improbable. these 13 circumstances creating a doubt as to the appellant s involvement in the crime attain more credence when gauged apropos the factum of the deceased being missing for more than two days, yet neither his wife nor his brother reported the deceased as missing. it does not appear that the deceased s family took any steps to find out as to where the deceased had gone. the deceased s wife has testified that relations between the parties were cordial, and has not hinted at animosity. 14. the decision relied upon by learned counsel for the state [ kashi ram ( supra ) ] is not relevant in the instant facts and circumstances for the

simple reason that in the said case, the fact of last seen had been established and thus, it was held that the accused therein, in whose company the victim was last seen had to explain as to what happened. whereas in the present case, the very fact whether the deceased had in fact gone with the appellant, after which his dead body was found had not been proved, as is the requirement in 14 law. in kashi ram ( supra ) itself, this is evincible from the subsequent paragraph : 15. the burden on the accused would, therefore, kick in, only when the last seen theory is established. in the instant case, at the cost of repetition, that itself is in doubt. this is borne out from subsequent decisions of this court, which we would advert to : ( a ) kanhaiya lal v state of rajasthan, ( 2014 ) 4 scc 715, where it was noted : 18. that apart, in chandrappa v state of karnataka, ( 2007 ) 4 scc 415, it was laid down that an appellate court, in the case of an acquittal, must bear in mind that there is a double presumption in favour of the accused. it was also emphasised that when two views are possible, the one favouring the accused is to be leaned on. the powers of the appellate court have been recently summarised in jafarudheen v state of kerala, 4 2023 scc online sc 1038. ( 2022 ) 8 scc 440 at paragraphs 25 - 27. on these factors as well, the impugned judgment is untenable. 19. for the reasons aforesaid, the appeal is allowed. the impugned judgment of conviction and sentence passed by the high court is set aside. the appellant is discharged from the liability of his bail bonds......................... j. [ vikram nath ].......................... j. [ ahsanuddin amanullah ] new delhi september 6, 2023

rajesh bindal, j. 1. delay condoned. 2. leave granted. 3. the appellants have challenged the order dated 20. 12. 2017 passed by the high court of delhi. vide aforesaid order, writ petition filed by the respondents was allowed holding signature not verified that in view of section 24 ( 2 ) of the right to fair compensation digitally signed by anita malhotra date : 2023. 04. 11 17 : 43 : 58 ist reason : and transparency in land acquisition, rehabilitation and page 1 of 14 d. no. 23608 / 2021 resettlement act, 2013 ( for short the 2013 act ), the acquisition in respect to the land in dispute, has lapsed. 4. from the facts of the case as are available on record, it is evident that vide notification dated 23. 06. 1989 issued under section 4 of the land acquisition act, 1894 large chunk of the land including the land of petitioner comprised in khasra no. 1 etc / 57 / 1 and khasra no. 1 etc / 58 / 1, situated in revenue estate of village ghonda, chauhan khadar, new delhi was sought to be acquired for planned development of delhi. it was followed by the notification issued under section 6 dated 20. 06. 1990. the award was announced on 19. 06. 1992. 5. a writ petition was filed in the high court invoking section 24 ( 2 ) of the 2013 act claiming that the acquisition in question has lapsed as neither possession has been taken nor the compensation therefor has been paid. the appellant s stand before the high court was that the possession of the land was taken on 06. 12. 2012 and handed over to the dda on the spot. the compensation could not be paid to the recorded land owners as they never came forward to claim the same. page 2 of 14 d. no. 23608 / 20216. the high court relying upon the judgment of this court in pune municipal corporation & anr. v. misirimal solanki & ors. ( 2014 ) 3 scc 183 held that since the compensation was not paid to the landowners, i. e., the respondents herein, the acquisition in question has lapsed. 7. the arguments raised by learned counsel appearing for the appellants are that in view of the constitution bench judgment of this court in indore development authority v. manoharlal and others ( 2020 ) 8 scc 129 whereby earlier judgment of this

court in pune municipal corporation & anr. s case ( supra ) was overruled, the order passed by the high court is liable to be set aside. it was opined by the constitution bench that compliance of either of the two conditions i. e. taking over of possession of the land or payment of compensation, is good enough to sustain the acquisition. from the undisputed facts available on record it is evident that in the present case, the possession of land in dispute was taken after the acquisition was complete. page 3 of 14 d. no. 23608 / 20218. additionally, an important fact brought to our attention is that the subject land is required by nhai for construction of the delhi saharanpur dehradun highway starting from akshardham junction to delhi / up border, in the state of delhi in phase i of bharatmala pariyojana. even the contractors have been appointed to execute the project, which may be delayed due to pendency of the present appeal. the subject land is therefore a part of the project which is of national importance. 9. on the other hand, the arguments raised by learned counsel for the respondents are that the writ petition having been decided on the basis of law as existing on the date of decision by the high court cannot be set aside on the basis of the subsequent judgment of this court. the high court had held that compensation having not been paid, as per the interpretation of section 24 ( 2 ) of the 2013 act by this court in pune municipal corporation s case ( supra ), the acquisition proceedings lapsed. it is a matter of fact which has been noticed page 4 of 14 d. no. 23608 / 2021 in the order passed by the high court that the possession of the land had already been taken by the authority concerned. 10. heard learned counsel appearing for the parties and perused the records. 11. the constitution bench of this court in indore development authority's case ( supra ) had opined that satisfaction of either of the conditions namely either taking possession of the acquired land or payment of compensation to the landowners would be sufficient to save the acquisition from being lapsed in terms of section 24 ( 2 ) of the 2013 act. various questions posed before the constitution bench of this court were also answered. relevant para nos. 362 and 366 are extracted below : 366. 1. under the provisions of section 24 ( 1 ) ( a ) in case the award is not made as on 1 1 2014

, the page 5 of 14 d. no. 23608 / 2021 date of commencement of the 2013 act, there is no lapse of proceedings. compensation has to be determined under the provisions of the 2013 act. 366. 2. in case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under section 24 ( 1 ) ( b ) of the 2013 act under the 1894 act as if it has not been repealed. 366. 3. the word or used in section 24 ( 2 ) between possession and compensation has to be read as nor or as and. the deemed lapse of land acquisition proceedings under section 24 ( 2 ) of the 2013 act takes place where due to inaction of authorities for five years or more prior to commencement of the said act, the possession of land has not been taken nor compensation has been paid. in other words, in case possession has been taken, compensation has not been paid then there is no lapse. similarly, if compensation has been paid, possession has not been taken then there is no lapse. ( emphasis supplied ) 366. 4. the expression paid in the main part of section 24 ( 2 ) of the 2013 act does not include a deposit of compensation in court. the consequence page 6 of 14 d. no. 23608 / 2021 of non deposit is provided in the proviso to section 24 ( 2 ) in case it has not been deposited with respect to majority of landholdings then all beneficiaries ( landowners ) as on the date of notification for land acquisition under section 4 of the 1894 act shall be entitled to compensation in accordance with the provisions of the 2013 act. in case the obligation under section 31 of the land acquisition act, 1894 has not been fulfilled, interest under section 34 of the said act can be granted. non deposit of compensation ( in court ) does not result in the lapse of land acquisition proceedings. in case of non deposit with respect to the majority of holdings for five years or more, compensation under the 2013 act has to be paid to the landowners as on the date of notification for land acquisition under section 4 of the 1894 act. 366. 5. in case a person has been tendered the compensation as provided under section 31 ( 1 ) of the 1894 act, it is not open to him to claim that acquisition has lapsed under section 24 ( 2 ) due to non payment or non deposit of compensation in court. the obligation to pay is complete by tendering the

amount under section 31 ( 1 ). the landowners who had refused to accept compensation or who sought reference for higher compensation, cannot page 7 of 14 d. no. 23608 / 2021 claim that the acquisition proceedings had lapsed under section 24 ( 2 ) of the 2013 act. 366. 6. the proviso to section 24 ( 2 ) of the 2013 act is to be treated as part of section 24 ( 2 ), not part of section 24 ( 1 ) ( b ). 366. 7. the mode of taking possession under the 1894 act and as contemplated under section 24 ( 2 ) is by drawing of inquest report / memorandum. once award has been passed on taking possession under section 16 of the 1894 act, the land vests in state there is no divesting provided under section 24 ( 2 ) of the 2013 act, as once possession has been taken there is no lapse under section 24 ( 2 ). 366. 8. the provisions of section 24 ( 2 ) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1 1 2014. the period of subsistence of interim orders passed by court has to be excluded in the computation of five years. 366. 9. section 24 ( 2 ) of the 2013 act does not give rise to new cause of action to question the legality of concluded proceedings of land page 8 of 14 d. no. 23608 / 2021 acquisition. section 24 applies to a proceeding pending on the date of enforcement of the 2013 act i. e. 1 1 2014. it does not revive stale and time barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition. 12. the issue as to what is meant by " possession of the land by the state after its acquisition " has also been considered by constitution bench of hon'ble supreme court in indore development authority s case ( supra ). it is opined therein that after the acquisition of land and passing of award, the land vests in the state free from all encumbrances. the vesting of land with the state is with possession. any person retaining the possession thereafter has to be treated trespasser. when large chunk of land is acquired, the state is not supposed to put some person

or police force to retain the possession and start cultivating on the land till it is utilized. the government is also not supposed to start residing or physically occupying the same once process of the acquisition is complete. if after the process of acquisition is page 9 of 14 d. no. 23608 / 2021 complete and land vest in the state free from all encumbrances with possession, any person retaining the land or any re entry made by any person is nothing else but trespass on the state land. relevant paragraphs 244, 245 and 256 are extracted below : 245. the question which arises whether there is any difference between taking possession under the act of 1894 and the expression " physical possession " used in section 24 ( 2 ). as a matter of fact, what was contemplated under the act of 1894, by taking the possession meant only physical possession of the land. taking over the possession under the act of 2013 always amounted to taking over physical possession of the land. when the state government acquires land and drawns up a memorandum of taking possession, that amounts to taking the physical possession of the land. on the large chunk of property or otherwise which is acquired, the government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. the government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. thereafter, if any further retaining of land or any re entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is page 11 of 14 d. no. 23608 / 2021 deemed to be the trespasser on land which in possession of the state. the possession of trespasser always inures for the benefit of the real owner that is the state government in the case. xxxx256. thus, it is apparent that vesting is with possession and the statute has provided under sections 16 and 17 of the act of 1894 that once possession is taken, absolute vesting occurred. it is an indefeasible right and vesting is with possession thereafter. the vesting specified under section 16, takes place after various steps, such as, notification under section 4, declaration under section 6, notice under section 9, award under section 11 and then possession. the statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. not

only the possession vests in the state but all other encumbrances are also removed forthwith. the title of the landholder ceases and the state becomes the absolute owner and in possession of the property. thereafter there is no control of the landowner over the property. he cannot have any animus to take the property and to control it. even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the state, he is a trespasser and such page 12 of 14 d. no. 23608 / 2021 possession of trespasser enures for his benefit and on behalf of the owner. " ( emphasis supplied ) 13. it is also a fact to be noticed and taken care of that large chunk of land is acquired for planned development to take care of immediate need and also keep buffer for future requirements. such portion of land may be lying vacant also. as has been observed in indore development authority s case ( supra ) by this court, the state agencies are not supposed to put police force to protect possession of the land taken after process of acquisition is complete. as far as the case in hand is concerned, the land even if was lying vacant, is required now for a project of national importance for construction of the delhi saharanpur dehradun highway starting from akshardham junction to delhi / up border, in the state of delhi in phase i of bharatmala pariyojana. 14. it is the undisputed fact on the record, as has been noticed in the impugned order passed by the high court, the possession of the land was taken over by the land acquisition collector and handed over to delhi development authority. page 13 of 14 d. no. 23608 / 2021 report of possession proceedings dated 06. 12. 2012 has also been placed on record. hence, one of the conditions being satisfied, we need not examine any other argument. 15. keeping in view the aforesaid fact and the law laid down by the constitution bench of this court in indore development authority s case ( supra ), in our opinion the order passed by the high court cannot be legally sustained and the same is accordingly set aside. however, the respondents shall be entitled to receive compensation as per their entitlement. the land acquisition officer should also take steps to pay the same to the rightful owner. 16. the appeal is disposed of accordingly. j. [ abhay s. oka ]. j. [ rajesh bindal ] new

delhi ; 11. 04. 2023. page 14 of 14

m. r. shah, j. 1. feeling aggrieved and dissatisfied with the impugned judgment and order dated 20. 11. 2018 signature not verified digitally signed by neetu sachdeva date : 2023. 04. 11 16 : 36 : 54 ist passed by the high court of judicature for reason : 1 rajasthan bench at jaipur passed in d. b. criminal appeal no. 818 of 2013 by which the division bench of the high court has partly allowed the said appeal preferred by the respondent accused vijendra singh and has set aside the conviction for the offence punishable under section 302 / 149 ipc but has convicted for the offence punishable under section 323 ipc, the original complainant / informant has preferred the present appeal. 2. the facts leading to the present appeal in nutshell are as under : 2. 1 an fir was lodged by the police on 01. 12. 2010 for an incident which took place on 28. 11. 2010. in the fir it was alleged that on 28. 11. 2010, while 2 complainant s younger brother narendra singh was filling water from hand - pump at around 9. 30 a. m. accused bhupendra singh, vijendra singh and bhawani singh, sangeeta and gulab kanwar caused lathi blows to narendra singh. in the said incident narendra singh and bhawani singh became unconscious. both of them were taken to the hospital. bhawani singh died. the fir was registered as fir bearing no. 445 / 2010. though the five persons were named in the fir the police filed charge - sheet only against two persons namely bhupendra singh and vijendra singh for the offence under sections 341, 323, 325 / 34, 308 / 34 and 302 and alternatively, section 302 / 34 ipc. both the aforesaid accused came to be tried for the aforesaid offence. to prove the 3 charge against the accused the prosecution examined ten witnesses and brought on record seven documentary evidences. the statements of the accused under section 313 cr. p. c. were recorded. 2. 2 during the trial, the accused bhupendra singh died. thus, the proceedings against him stood abated. the prosecution submitted an application under section 319 cr. p. c. against the remaining three accused persons so left out by the prosecution. the said application was dismissed by the learned trial court. however, on a challenge before the high court and on remand

, the learned trial court directed to try the remaining three accused as accused and passed a summoning order of additional accused. 4 however, as the remaining three accused absconded for number of years pursuant to the order passed by the high court, the trial against the respondent herein accused vijendra singh came to be separated. charge came to be reframed and the accused vijendra singh came to be charged for the offence under section 302 / 149 ipc also. thereafter on conclusion of the trial, the learned trial court convicted the accused vijendra singh for the offence punishable under sections 147, 323, 302 / 149 ipc and sentenced him to undergo life imprisonment for the offence punishable under sections 302 read with section 149 ipc, one year r. i. for the offence under section 323 ipc and two years r. i. for the offence under section 147 ipc. 5 2. 3 the respondent herein accused preferred the present appeal before the high court. by the impugned judgment and order the high court has set aside the conviction of the accused vijendra singh for offence under section 302 read with section 149 ipc by observing that no case is made out for conviction with the aid of section 149 ipc. that thereafter the high court has considered the individual act of the accused and thereafter after taking into consideration the fact that the fatal blow on the head was given by accused bhupendra singh ( who died during the trial ) and the weapon used by the accused was lathi, the high court by the impugned judgment and order has convicted the accused for the offence under section 323 ipc. 6 2. 4 feeling aggrieved and dissatisfied with the impugned judgment and order passed by the high court convicting the accused for the offence under section 302 read with section 149 ipc, the original complainant / informant surendra singh has preferred the present appeal. 3. shri siddhartha dave, learned senior advocate has appeared as amicus curiae on behalf of the appellant, shri vishal meghwal, learned counsel has appeared on behalf of the respondent state and shri abhishek gupta, learned counsel has appeared on behalf of respondent no. 2. 4. shri siddhartha dave, learned senior counsel appearing on behalf of the appellant has vehemently submitted that in the facts and 7 circumstances of the case the division bench of the high court has materially erred in observing that no case was made out for conviction with the aid of section 149 ipc. 4. 1 it is vehemently submitted by shri dave, learned senior counsel that the high court has materially erred

in observing that after the registration of the fir, even the police found the case only against the two accused and the cognizance of the offence against the other accused are taken subsequently on the remand of the case by the high court after rejection of application under section 319 cr. p. c. and the learned trial court took cognizance against the accused later on and therefore no case is made out for conviction with the aid of section 8 149 ipc. 4. 2 it is vehemently submitted by shri dave learned senior counsel appearing on behalf of the appellant that the high court has not properly appreciated and / or considered the fact that as such in the fir the allegations were specific against five accused persons. however, at the relevant time the investigating officer filed the charge - sheet only against the two accused persons and the remaining three persons were arrayed as accused subsequently pursuant to the order passed by the learned magistrate allowing the application under section 319 cr. p. c. it is submitted that therefore when all the five persons came to be tried may be separately there was an involvement of five persons who form the unlawful 9 assembly and therefore section 149 ipc would be attracted. 4. 3 heavy reliance is placed on the decision of this court in the case of bharwad mepa dana & anr. vs. state of bombay 1960 ( 2 ) scr 172 as well as mizaji and anr. vs. the state of u. p. ( 1959 ) supp. ( 1 ) scr 940. 5. learned counsel appearing on behalf of the state has supported the appellant. 6. shri abhishek gupta, learned counsel appearing on behalf of accused no. 2 relying upon the decision of this court in the case of roy fernandes vs. state of goa and others, ( 2012 ) 3 scc 221, has vehemently submitted that as such on facts no case is made out to convict the 10 accused with the aid of section 149 ipc. 6. 1 it is submitted that merely because the accused might have been present at the time of commission of the offence and in fact might have participated in commission of the offence but has not played a vital role unless it is proved that the other accused knew that in prosecution of the common object any one of them is likely to commit the murder of the deceased, section 149 ipc shall not be attracted. 6. 2 now so far as the conviction of the accused for the offence under section 323 ipc, it is vehemently submitted by learned counsel

appearing on behalf of the accused that though the respondent no. 2 has not preferred the appeal challenging the 11 conviction under section 323 ipc, still in an appeal preferred by the state against the acquittal, the accused can submit that he could not have been convicted for other offence. reliance is placed upon the decision of this court in the case of state of rajasthan vs. ramanand ( 2017 ) 5 scc 695. 6. 3 in support of his submission that even the respondent - accused could not have been convicted even for the offence under section 323 ipc, learned counsel appearing on behalf of the respondent accused has made the following submissions : ( i ) that there was a delay of 3 days in lodging the fir ; 12 ( ii ) that the injury on the neck has not been established and proved ; ( iii ) that there are material contradictions on the injuries caused by the accused persons. he has taken us to the deposition of doctor examined as pw7 and the injury report. 7. making above submissions it is prayed to acquit the accused even for the offence under section 323 ipc. 8. we have heard learned counsel appearing on behalf of the respective parties at length. 9. at the outset, it is required to be noted that the learned trial court convicted the respondent accused for the offence under section 302 ipc 13 with the aid of section 149 ipc. however, the high court has observed and held that as the initial charge - sheet was filed only against two persons / accused and further three persons were subsequently arrayed as the accused and they are being tried separately, section 149 ipc shall not be attracted. the high court has also observed that even as per the fir three accused came at the place of occurrence when they saw narendra singh was filling water and it was thus not assembly of five accused. 10. however, the high court has not properly and considered the fact that in the report / fir there were specific allegations against five accused persons and five accused persons were named in the fir. however, the investigating officer charge - 14 sheeted only two persons. the remaining three accused persons came to be added as accused by the learned trial court while allowing the application under section 319 cr. p. c. as they absconded and therefore their trial came to be ordered to be separated and it is reported that the trial against the remaining accused is still pending who are also facing the charges for the offence under section 302 / 149 ipc. in that view of the matter when five persons were specifically named in the fir and five persons are

facing the trial may be separately, section 149 ipc would be attracted. at this stage the decision of this court in the case of bharwad mepa dana ( supra ) on applicability of section 149 ipc is required to be referred to. before this court it was the case on 15 behalf of the prosecution that thirteen named persons formed an unlawful assembly and the common object of which was to kill the three brothers. twelve of them were tried by the sessions court who acquitted seven and the high court acquitted one more. this brought the number to four. it was the case on behalf of the accused that as the high court convicted only four persons falling below the required number of five, they could not have been convicted with the aid of section 149 ipc. the aforesaid contention was negated by this court. this court observed that merely because two other persons forming part of the unlawful assembly were not convicted as their identity was not established, the accused cannot be permitted to say that they are not 16 forming part of the unlawful assembly and they cannot be convicted with the aid of section 149 ipc. in the said decision it is specifically observed and held that the essential question in a case under section 147 is whether there was an unlawful assembly as defined under 141, i. p. c., of five or more than five persons. the identity of the persons comprising the assembly is a matter relating to the determination of the guilt of the individual accused, and even when it is possible to convict less than five persons only, section 147 still applies, if upon the evidence in the case the court is able to hold that the person or persons who have been found guilty were members of an assembly of five or more persons, known or unknown, identified or unidentified. 17 10. 1 in view of the above facts and circumstances of the case the high court has seriously erred in observing that no case is made out to invoke section 149 ipc. 10. 2 now once the respondent accused was found to be member of the unlawful assembly of more than five persons and he actually participated in commission of the offence may be the fatal blow might have been given by the another accused, in the present case bhupendra singh, still with the aid of section 149 ipc, respondent accused can be convicted for the offence under section 302 ipc with the aid of section 149 ipc. the case would certainly fall within first part of section 149 ipc. as per first part of section 149 ipc if an offence is committed by any member of unlawful assembly 18 in prosecution of the common

object of that assembly, every person who, at the time of that offence, is a member of the same assembly, is guilty of that offence. in the case of mizaji and anr. ( supra ), this court had occasion to consider section 149 of the ipc and the distinction between two parts of section 149 ipc. it is observed and held as under : similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all. there is a great deal to be said for the opinion of couch, c. j., in sabid ali's case ( 1 ) that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. that, however, does not make the converse proposition true ; there may be cases which would come within the second 20 part, but not within the first. the distinction between the two parts of s. 149, indian penal code cannot be ignored or obliterated. in every case it would be an issue to be determined whether the offence committed falls within the first part of s. 149 as explained above or it was an offence such as the members of the assembly know to be likely to be committed in prosecution of the common object and falls within the second part. 10. 3 now so far as the reliance placed upon the decision of this court in the case of roy fernandes ( supra ), relied upon on behalf of the respondent accused is concerned, on facts the said decision shall not be applicable. in the said decision this court had considered the second part of section 149 ipc. this court did not consider the first part of section 149 ipc and the distinction between the first part and the second part of section 149 which has been considered by this court in the case of mizaji and anr. ( supra ). 2111. now, so far as the submission on behalf of the accused that he ought not to have been convicted for the offence under section 323 ipc is concerned, though the accused has not challenged the impugned judgment and order passed by the high court challenging the offence under section 323 ipc we have heard the learned counsel appearing on behalf of the accused on merits on his conviction under

section 323 ipc. 11. 1 the submission on behalf of the accused that there was a delay of 3 days has been elaborately dealt with and considered by the learned trial court in detail. a proper explanation has been given by the complainant - surendra singh. immediately after the occurrence the injured were taken to the hospital for treatment. 22 the condition of bhawani singh was serious. complainant concentrated on his treatment. another injured narendra singh was also remained busy for the treatment. thus, when the delay has been sufficiently and properly explained, we see no reason to give benefit of doubt to the accused on the aforesaid ground that there was a delay of 3 days in lodging the fir. 11. 2 now so far as the submission on behalf of the accused on the injuries and the contradictions in the injuries, at the outset, it is required to be noted that the deposition of the eye - witness pw1 and pw4 and the deposition of the doctor - pw7 are relevant material / deposition against the accused. the deceased sustained following injuries : 231. 2xl / 2 cm scratched injury in the middle of head with red color soft clotting and hematoma beneath the skin of the head2. blue colored swelling on right head measuring 2. sxl internal hematoma in frontal head lobe. 3. 2cm stitch wound on occipital region of head. blood clotting a parietal region of right side of head. 4. 3x2 cm scratched injury in front parietal part. 5. lxl / 2 cm injury over nose. 6. 2xl / 2 cm scratched i injury over right knee. 7. 5x0. 5 cm scratched injury on the lower part of left leg. 8. 0. 5x0. 5 cm scratched injury on the middle part of left leg. 249. 6xl. 5 cm blue colored wound on the back of neck. while further dissecting it was found that on left muscles there is hematoma and fourth and fifth cervical ribs were broken. there was swelling on it. 10. on front of stomach 2. 5xl. 5 cm blue coloured wound on naval side. all these wounds and injuries lead to death as per the opinion of the doctor. as per the medical opinion and the deposition of doctor the death occurred due to injury no. 9 from the shock of wound at spinal bone of neck

. though the injury no. 9 was caused by the accused bhupendra singh as observed and held hereinabove the respondent accused being a part of the unlawful assembly and who also participated in commission of the offence, he shall also be liable 25 to be convicted for the offence under section 302 ipc with the aid of section 149 ipc, even for the act of the accused bhupendra singh who gave the vital blow. 12. under the circumstances the impugned judgment and order passed by the high court acquitting the accused for the offence under section 302 read with section 149 ipc is unsustainable and the same deserves to be quashed and set aside. in view of the above and for the reason stated above the present appeal succeeds. the impugned judgment and order passed by the high court acquitting the respondent accused for the offence under section 302 under section 149 ipc is hereby quashed and set aside. the judgment and order passed by the learned trial court 26 convicting the respondent accused for the offence under sections 427, 323 and 302 / 149 ipc is hereby restored. the respondent no. 2 accused to undergo life imprisonment for the offence under section 302 / 149 ipc. the respondent no. 2 now to surrender before the concerned authority / court to undergo the remaining sentence of life imprisonment within a period of three weeks from today, failing which, he shall be taken into custody forthwith. present appeal is accordingly allowed. j. ( m. r. shah ) j. 27 ( c. t. ravikumar ) new delhi, april 11, 2023. 28

pamidighantam sri narasimha, j. 1. this appeal arises out of the decision of the high court of manipur1 dated 11. 04. 2023, whereby the returned candidate s application under order 7 rule 11 of the code of civil procedure, 19082, to dismiss the election petition filed by the unsuccessful candidate on the ground that it lacks material particulars and is in violation of mandatory requirements of law was rejected by the high court. the returned candidate is the appellant before us. signature not verified digitally signed by deepak singh date : 2023. 08. 24 15 : 09 : 44 ist reason : 1hereinafter the high court. hereinafter, the cpc. 1 facts : 2. the short and precise facts necessary for our consideration are as follows. the appellant is the returned candidate to the xii manipur legislative assembly, having been elected from the 15 - wangkhei assembly constituency. the respondent no. 1, the unsuccessful candidate moved election petition no. 24 of 20223 alleging violations under sections 80, 80a, 81, 84 read with sections 100 ( 1 ) ( d ) ( iv ) and 101 of the representation of people act, 19514. the election petitioner prayed that the election of the appellant be held void and also to declare him to be the elected candidate. it is important to note that the election petition alleges corrupt practice, in as much as the petitioner pleaded that the returned candidate has not provided the material particulars with respect to a financial transaction relating to financing a loan. 3. in response to the election petition, the appellant moved two applications under order 7 rule 11 read with section 151 of the cpc and under section 86 of the act seeking dismissal of the election petition on the grounds of ( i ) non - disclosure of cause of action / triable issue vis - - vis the alleged corrupt practice committed by the appellant ; ( ii ) the absence of a concise statement 3 hereinafter, the election petition. 4 hereinafter, the act. 2 of facts as mandated under section 83 of the act ; and ( iii ) for not serving a true self attested copy of the election petition on the returned candidate as provided under section 81 of the act. apart from the above, and more importantly, the appellant also sought dismissal of the election petition on the ground that the form - 25 affidavit as prescribed under section 83 of the act r / w rule 94a of the conduct of election rules, 19615 has not been filed along - with the election petition. it was alleged that

such an affidavit is mandatory, as the election petition raises allegations of corrupt practice. 4. the high court, by the order impugned, dismissed the applications under order 7 rule 11 of the cpc. the high court observed that ( i ) the election petitioner had elaborately pleaded all the material facts and set forth full particulars of all the actions and omissions of the appellant, sufficient to constitute a case of corrupt practice. the high court, therefore, concluded that there is a cause of action and triable issues ; ( ii ) the high court also concluded that the alleged non - compliance of section 81 ( 3 ) of the act is incorrect as the election petitioner had effectively attested the election petition. for this purpose, high court relied on the 5 hereinafter, the rules. 3 decisions of this court in ch. subbarao v. member, election tribunal, hyderabad & ors. 6, and also a decision of the same court in pukhrem sharatchandra singh v. mairembam prithviraj @ prithibiraj singh7, later came to be upheld by this court in mairembam prithviraj @ prithviraj singh v. pukhrem sharatchandra singh8. the high court observed that although the election petitioner attested the election petition as true copy of the original and not as true copy of the petition, the same is in compliance with section 81 ( 3 ) of the act. 5. the submission that in all cases involving allegations of corrupt practices, the election petitioner must mandatorily file an affidavit under section 83 ( 1 ) of the act was rejected without much discussion. the high court simply following the decision of this court in lok prahari through its general secretary v. union of india & ors. 9, rejected the plea. submissions : 6. mr. devadatt kamat, learned senior counsel appearing for the appellant initially argued the first two grounds, namely that there is a non - disclosure of the cause of action and also that there is a 6 air 1964 sc 1027 7 2016 scc online mani 30 8 ( 2017 ) 2 scc 487 9 ( 2018 ) 4 scc 699 4 complete non - compliance of the requirement under section 81 ( 3 ) of the act with respect to the attestation of the election petition. however, as we expressed our disinclination to interfere on those grounds, he took up the alternative point and emphatically argued that the judgment of the high court is unsustainable as the election petition completely violated the mandatory

requirement of 83 ( 1 ) ( c ) of the act. he argued that the election petition must fail for not filing the additional affidavit in support of the allegation of corrupt practice. he elaborated this point by taking us through the section, and in particular, the proviso which requires that in cases of corrupt practice, the petition shall also be accompanied by an affidavit. 7. on the specific submission of mr. devadatt kamat as to how the election petition alleging corrupt practice must fail for not filling the additional affidavit, mr. shadan farasat, learned counsel for the election petitioner submitted that no such additional affidavit is filed. mr. farasat, however, strengthened his case in the written submission by referring to the decisions of this court in g. m. siddeshwar v. prasanna kumar10, and a. manju v. 10 ( 2013 ) 4 scc 776 5 prajwal revanna11, where it was held that non - filing of a form - 25 affidavit is a curable defect. issue for consideration : 8. the only issue for consideration is whether the election petition is liable to be dismissed by allowing the order 7 rule 11 application for non - compliance of section 83 ( 1 ) ( c ) of the act. analysis : 9. we may at the outset state that there is absolutely no consideration of this issue by the high court. neither the implications of section 83 ( 1 ) ( c ) of the act, nor the interpretation of its proviso were taken up for consideration by the high court. further, surprisingly, the high court simply referred to the decision of this court in lok prahari ( supra ) and rejected the submission. lok prahari ( supra ) has no bearing on the issue. 10. we would refer to the statutory provisions and the judgments on the point for answering the question of law raised by the appellant. we will first refer to sections 83 and 86 of the act and order 6 rule 15 of the cpc. 83. contents of petition ( 1 ) an election petition ( a ) shall contain a concise statement of the material facts on which the petitioner relies ; 11 ( 2022 ) 3 scc 269 6 ( b ) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice ; and ( c ) shall be signed by the petitioner and verified in the manner laid down in the code

of civil procedure, 1908 ( 5 of 1908 ) for the verification of pleadings : provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. ( 2 ) any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. 86. trial of election petitions ( 1 ) the high court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. order 6 rule 15 : verification of pleadings ( 1 ) save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. ( 2 ) the person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. ( 3 ) the verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. ( 4 ) the person verifying the pleading shall also furnish an affidavit in support of his pleadings. 711. the first decision on this issue is by a constitution bench in t. m. jacob v. c. poulose12. in the said case, the returned candidate was defending an election petition filed against him on the ground of non - compliance with the requirements under section 81 ( 3 ) of the act. this court, after going through the difference in the legislative intent of sections 81 and 83 of the act, observed that non - compliance with the requirements of the former provides for an automatic dismissal of an election petition under section 86 of the act, and non - compliance with the latter is a curable defect and would not merit dismissal at the threshold. in this light, this court observed that : 12. in siddeshwar ( supra ), the matter came up before a three - judge bench of this court by way of a reference. when the matter was placed before a two - judge bench, it was contended, relying upon p. a. mohammed riyas v. m. k. raghavan13, that an election petitioner has to file the form - 25 affidavit in support of the corrupt practice allegation, in addition to the usual verifying affidavit which

forms an integral part of the election petition. on the other hand, the two - judge bench was also appraised of judgments to the contrary which held that not filing of the affidavit is a curable defect. in order to give quietus to the issue, the matter was referred to a bench of three judges. after relying on various precedents, the three judge bench in siddeshwar observed as under : 2. another question that has arisen is that if an affidavit filed in support of the allegations of corrupt practices of a returned candidate is not in the statutory form 25 prescribed by the conduct of elections rules, 1961, whether the election petition is liable to be summarily dismissed. in our opinion, as long as there is substantial compliance with the statutory form, there is no reason to summarily dismiss an election petition on this ground. however, an opportunity must be given to the election petitioner to cure the defect. further, merely because the affidavit may be defective, it cannot be said that the petition filed is not an election petition as understood by the representation of the people act, 1951. 22. a plain reading of rule 15 suggests that a verification of the plaint is necessary. in addition to the verification, the person verifying the plaint is also required to file an affidavit in support of the pleadings. does this mean, as suggested by the learned counsel for siddeshwar that prasanna kumar was obliged to file two affidavits one in support of the allegations of corrupt practices and the other in support of the pleadings? 23. a reading of section 83 ( 1 ) ( c ) of the act makes it clear that what is required of an election petitioner is only that the verification should be carried out in the manner prescribed in cpc. that order 6 rule 15 requires an affidavit also to be filed does not mean that the verification of a plaint is incomplete if an affidavit is not filed. the affidavit, in this context, is a stand - alone document. 25. it seems to us that a plain and simple reading of section 83 ( 1 ) ( c ) of the act clearly indicates that the requirement of an additional affidavit is not to be found therein. while the requirement of also filing an affidavit in support of the pleadings filed under cpc may be mandatory in terms of order 6 rule 15 ( 4 ) cpc, the affidavit is not a part of the 10 verification of the pleadings both are quite different. while the act does require a verification of the pleadings, the plain language of section 83 ( 1 ) ( c )

of the act does not require an affidavit in support of the pleadings in an election petition. we are being asked to read a requirement that does not exist in section 83 ( 1 ) ( c ) of the act. 37. a perusal of the affidavit furnished by prasanna kumar ex facie indicates that it was not in absolute compliance with the format affidavit. however, we endorse the view of the high court that on a perusal of the affidavit, undoubtedly there was substantial compliance with the prescribed format. it is correct that the verification was also defective, but the defect is curable and cannot be held fatal to the maintainability of the election petition. 38. recently, in ponnala lakshmaiah v. kommuri pratap reddy, ( 2012 ) 7 scc 788 the issue of a failure to file an affidavit in accordance with the prescribed format came up for consideration. this is what this court had to say : 13. more recently, in a. manju v. prajwal revanna ( supra ), this court dealt with the same question as to whether an election petition containing an allegation of corrupt practice but not supported by an affidavit in form 25, is liable to be dismissed at the threshold. this court had observed : prasanna kumar, ( 2013 ) 4 scc 776, ought to have resulted in a conclusion that the correct ratio in view of these facts was to permit the appellant to 12 cure this defect by filing an affidavit in the prescribed form. ( emphasis supplied ) 14. the position of law that emerges for the above referred cases is clear. the requirement to file an affidavit under the proviso to section 83 ( 1 ) ( c ) is not mandatory. it is sufficient if there is substantial compliance. as the defect is curable, an opportunity may be granted to file the necessary affidavit. 15. in the instant case, the election petition contained on affidavit and also a verification. in this very affidavit, the election petitioner has sworn on oath that the paragraphs where he has raised allegations of corrupt practice are true to the best of his knowledge. though there is no separate and an independent affidavit with respect to the allegations of corrupt practice, there is substantial compliance of the requirements under section 83 ( 1 ) ( c ) of the act. 16. we are in agreement with the conclusion of the high court that there is substantial compliance of the requirements under section 83 ( 1 ) ( c ) of the act and this finding satisfies the test laid down by

this court in siddeshwar ( supra ). even the subsequent decision of this court in revanna ( supra ) supports the final conclusion arrived at by the high court. 1317. for the reasons stated above, we are of the opinion that the appellant has not made out a case for interfering with the judgment of the high court. we, therefore, proceed to dismiss c. a. nos. 4179 - 4180 of 2023 arising out of the judgment and order of the high court dated 11. 04. 2023 in mc ( el. pet. ) no. 67 of 2022 and mc ( el. pet. ) no. 135 of 2022. 18. parties shall bear their own costs.... cji. [ dr dhananjaya y chandrachud ].. j. [ pamidighantam sri narasimha ] new delhi ; august 23, 2023 14

bela m. trivedi, j. 1. the instant special leave petition is directed against the judgment and order dated 09. 08. 2019 passed by the high court of jammu and kashmir at srinagar in lpasw no. 71 of 2018, whereby the high court has dismissed the appeal filed by the petitioner - appellant and confirmed the order dated 14. 05. 2018 passed by the single bench dismissing the swp no. 1766 of 2017. 2. briefly stated, the petitioner had successfully participated in the selection process conducted in 2008 - 2009 for the post of signature not verified constable in the jammu and kashmir executive police, and he digitally signed by jayant kumar arora date : 2023. 02. 28 16 : 01 : 20 ist reason : was issued an appointment letter dated 20. 08. 2009. the petitioner thereafter was deputed to the police training school, manigam for 1 undergoing the nine months brtc course. it appears that thereafter the search slips of the ten newly recruited constables including the petitioner, were sent to the director, finger print bureau ( cppb ) and ncrb east, new delhi, for record and reference purpose, and the said bureau vide the letter dated 07. 12. 2009 responded that the petitioner was involved in a case registered as fir no. 52 / 2007 under section 379 of ranbir penal code ( rpc ) and section 6 of forest act, at the police station, kralgund. the said case was stated to be pending before the chief judicial magistrate, handwara. the matter was taken up with the deputy inspector general of police, nkr, baramulla, by the police district headquarter, handwara, for cancellation of the selection of the petitioner. during the course of inquiry, a summary of allegations and charge - sheet were served to the petitioner. it was alleged that in the said criminal case, the petitioner was released on bail after four days of his arrest, and therefore the petitioner had good knowledge of his involvement in the criminal case and that he had consciously concealed the said information. it was also found during the course of inquiry that the petitioner had shown his residence at village gundchobotra instead of pakhribal in order to get a clean chit at the time of police verification. under the 2 circumstances, the appointment order dated 20. 08. 2009 of the petitioner was cancelled by the order dated 01. 03.

2010. 3. the petitioner challenged the said order of cancellation of his appointment by filing the writ petition being swp no. 2616 of 2011 in the high court. in the meantime, the petitioner was tried and acquitted in the criminal case by the court of chief judicial magistrate, handwara vide the judgment dated 26. 04. 2011. the said petition therefore came to be disposed of vide the order dated 18. 05. 2016 whereby the impugned order dated 01. 03. 2010 was set aside by the high court. it was directed to the concerned respondent to take further action in view of the communication dated 27. 02. 2012 which in respect of the other persons similarly situated as the petitioner. on the reconsideration, the director general of police, jammu and kashmir, srinagar, passed the order dated 31. 07. 2017 stating inter alia that in view of the criminal background of the petitioner, he was found unsuitable for the post of constable in the disciplined force. 4. being aggrieved by the said order dated 31. 07. 2017, the petitioner filed the writ petition being swp no. 1766 of 2017 seeking reinstatement with consequential benefits. the said writ petition came to be dismissed by the single bench vide the judgment and order dated 14. 05. 2018, whereby the single bench placing reliance on the decision of union territory, chandigarh 3 administration and others vs. pradeep kumar and another 1, held that the decision of the director general of police, the highest functionary in the hierarchy of police department, to consider the suitability of the appellant for induction into police force, could not be called into question. the aggrieved petitioner therefore filed the lpa, which came to be dismissed by the division bench vide the impugned order. 5. though the matter was argued at length by the learned counsels for the parties, the precise question that falls for consideration before this court is whether the director general of police, jammu & kashmir, srinagar, who after examining the record of the petitioner had come to the conclusion that the petitioner was not a fit person to hold the post into the police force in view of his criminal background, could be compelled to reinstate the petitioner on his acquittal in the criminal case. 6. it was sought to be submitted by the learned counsel for the petitioner that in the criminal trial proceeded against the petitioner, the prosecution had failed to examine the investigating officer and also failed to bring home the charges levelled against him,

and therefore his acquittal in the said case was required to be treated as an honorable acquittal. he further submitted that the very basis for presuming that the petitioner had a criminal background was no 1 ( 2018 ) 1 scc 797 4 more available to the respondents, on his having been acquitted by the competent criminal court. 7. in order to appreciate the said submission made by the learned counsel for the petitioner, it would be relevant to reproduce the relevant part of the judgment dated 26. 04. 2011 passed by the court of chief judicial magistrate, handwara, whereby the petitioner was acquitted from the charges levelled against him. that the i. o. has not been produced and examined which is legal infirmity in the prosecution case as material contradictions have not been answered nor the site plan has been proved. further, the seizure of timber has not been proved by the witnesses. none of witnesses has deposed that accused committed theft in the forest and willow trees were found in possession of the accused persons. on the basis of contradictory evidence accused cannot be convicted, as benefit of doubt goes to the accused. prosecution has miserably failed to fulfill the ingredients of section 379 rpc, 6 f. act against the accused persons. so, prosecution case fails. challan is dismissed. accused are acquitted of the charges for the commission of offence under section 379 rpc 6 f. act. accused are on bail. their bail bonds and personal bonds stand discharged. since the confiscation proceedings were initiated by the forest department, timber has been disposed of. challan be consigned to records after due completion. 8. apart from the fact that the phrase honourable acquittal has not been defined anywhere in the criminal procedure code, as transpiring from the afore - stated order passed in the criminal case for which the petitioner was tried, the petitioner was afforded a benefit of doubt in view of the contradictory evidence which had 5 come on record, also as the investigating officer was not examined by the prosecution. 9. in case of commissioner of police, new delhi and another vs. mehar singh2, this court on similar issues as involved in the present case observed as under : 2 ( 2013 ) 7 scc 685 626. in light of the above, we are of the opinion that since the purpose of the departmental proceedings is to keep persons, who are guilty of serious misconduct or dereliction of duty or who are guilty of grave cases of moral turpitude, out of the department, if found necessary, because

they pollute the department, surely the above principles will apply with more vigour at the point of entry of a person in the police department i. e. at the time of recruitment. if it is found by the screening committee that the person against whom a serious case involving moral turpitude is registered is discharged on technical grounds or is acquitted of the same charge, but the acquittal is not honourable, the screening committee would be entitled to cancel his candidature. stricter norms need to be applied while appointing persons in a disciplinary force because public interest is involved in it. 10. it was further observed therein that if the screening committee s decision was not mala fide or actuated by extraneous considerations, then the same could not be questioned. 35. the police force is a disciplined force. it shoulders the great responsibility of maintaining law and order and public order in the society. people repose great faith and confidence in it. it must be worthy of that confidence. a candidate wishing to join the police force must be a person of utmost rectitude. he must have impeccable character and integrity. a person having criminal antecedents will not fit in this category. even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force. the standing order, therefore, has entrusted the task of taking decisions in these matters to the screening committee. the decision of the screening committee must be taken as final unless it is mala fide. in recent times, the image of the police force is tarnished. instances of police personnel 7 behaving in a wayward manner by misusing power are in public domain and are a matter of concern. the reputation of the police force has taken a beating. in such a situation, we would not like to dilute the importance and efficacy of a mechanism like the screening committee created by the delhi police to ensure that persons who are likely to erode its credibility do not enter the police force. at the same time, the screening committee must be alive to the importance of the trust reposed in it and must treat all candidates with an even hand. 36. the screening committee's proceedings have been assailed as being arbitrary, unguided and unfettered. but, in the present cases, we see no evidence of this. however, certain instances have been pointed out

where allegedly persons involved in serious offences have been recommended for appointment by the screening committee. it is well settled that to such cases the doctrine of equality enshrined in article 14 of the constitution of india is not attracted. this doctrine does not envisage negative equality ( fuljit kaur [ fuljit kaur v. state of punjab, ( 2010 ) 11 scc 455 ] ). it is not meant to perpetuate illegality or fraud because it embodies a positive concept. if the screening committee which is constituted to carry out the object of the comprehensive policy to ensure that people with doubtful background do not enter the police force, deviates from the policy, makes exception and allows entry of undesirable persons, it is undoubtedly guilty of committing an act of grave disservice to the police force but we cannot allow that illegality to be perpetuated by allowing the respondents to rely on such cases. it is for the commissioner of police, delhi to examine whether the screening committee has compromised the interest of the police force in any case and to take remedial action if he finds that it has done so. public interest demands an in - depth examination of this allegation at the highest level. perhaps, such deviations from the policy are responsible for the spurt in police excesses. we expect the commissioner of police, delhi to look into the matter and if there is substance in the allegations to take necessary steps forthwith so that policy 8 incorporated in the standing order is strictly implemented. 11. the expression honourable acquittal had also come up for consideration in other cases namely, management of reserve bank of india, new delhi vs. bhopal singh panchal 3 ; and in r. p. kapur vs. union of india and another 4 whereby it was held inter alia that the mere acquittal does not entitle an employee to the reinstatement in service. the acquittal, it was held, has to be honourable. as such, the expressions honourable acquittal, acquitted of blame, fully exonerated are unknown to the code of criminal procedure or the penal code, and it is difficult to define precisely what is meant by expressions honourable acquittal. 12. in pradeep kumar s case ( supra ) also it was reiterated that if a person is acquitted or discharged, it cannot obviously be inferred that he was falsely involved, or he had no criminal antecedents. the precise observations made therein are re - produced hereunder : 3 ( 1994 ) 1 scc 541 4 air 1964 sc 787 9 samuthiram

, ( 2013 ) 1 scc 598 : ( 2013 ) 1 scc ( cri ) 566 : ( 2013 ) 1 scc ( l & s ) 229 ], in which this court held as under : ( scc p. 609, para 24 ) 24. the meaning of the expression honourable acquittal came up for consideration before this court in rbi v. bhopal singh panchal [ rbi v. bhopal singh panchal, ( 1994 ) 1 scc 541 : 1994 scc ( l & s ) 594 ]. in that case, this court has considered the impact of regulation 46 ( 4 ) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. in that context, this court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. the expressions honourable acquittal, acquitted of blame, fully exonerated are unknown to the code of criminal procedure or the penal code, which are coined by judicial pronouncements. it is difficult to define precisely what is meant by the expression honourably acquitted. when the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. 11.. 12.. 13. it is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. still, it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. from the observations of this court in mehar singh [ commr. of police v. mehar singh, ( 2013 ) 7 scc 685 : ( 2013 ) 3 scc ( cri ) 669 : ( 2013 ) 2 scc ( l & s ) 910 ] and parvez khan [ state of m. p. v. parvez khan, ( 2015 ) 2 scc 591 : ( 2015 ) 1 scc ( l & s ) 544 ] cases, it is clear that a candidate to be recruited to the police service must be of impeccable character and integrity. a person having criminal antecedents will not fit in this category. even if he is acquitted or discharged, it cannot be 10 presumed that he was honourably acquitted / completely exonerated. the decision of the screening committee must be taken as final unless it is shown to be mala fide. the screening committee also must be alive to the importance of the trust reposed in it and

must examine the candidate with utmost character. 13. as regards the suppression of relevant information or false information with regard to the criminal prosecution, arrest or pendency of criminal case against the candidate, a three - judge bench of this court in avtar singh vs. union of india and others5 has laid down the precise guidelines. para 38. 5 thereof reads as under : 14. in all the above cases, the requirement of integrity and high standard of conduct in police force has been highly emphasised. the high court in the impugned judgement has also elaborately dealt with each and every aspect of the issues involved, while upholding the order of the single bench to the effect that the director general being the highest functionary in the police hierarchy, was the best judge to consider the suitability of the petitioner for induction into the police force. the impugned order being just and proper, we are not inclined to interfere with the 5 ( 2016 ) 8 scc 471 11 same in exercise of our jurisdiction under article 136 of the constitution of india. 15. it is well settled position of law that though the scope of article 136 of constitution of india is very wide, the power conferred thereunder being a very special and extraordinary power, it has to be exercised in rare and exceptional cases. since, we do not find any infirmity or illegality in the impugned order passed by the high court, the present petition deserves to be dismissed and is accordingly dismissed.... j. [ ajay rastogi ].................................. j. [ bela m. trivedi ] new delhi ; 28. 02. 2023 12

m. r. shah, j. 1. feeling aggrieved and dissatisfied with the impugned judgment and order dated 24. 06. 2021 passed by the high court of judicature at allahabad in writ tax no. 328 of 2021 by which the high court has dismissed the said writ petition signature not verified digitally signed by neetu sachdeva date : 2023. 01. 05 16 : 39 : 18 ist preferred by the appellant herein seeking direction to the reason : respondents for consideration of the case of the petitioner 1 under the scheme sabka vishwas ( legacy dispute resolution ) scheme, 2019 ( hereinafter referred to as the scheme of 2019 ), the original writ petitioner has preferred the present appeal. 2. the facts leading to the present appeal in nutshell are as under : that the appellant company registered with the service tax department was a company engaged in providing hospitality services. the service tax department conducted investigations as to the evasion of service tax by the appellant and issued show cause notices demanding payment of service tax under various categories such as accommodation in hotels, inn, guest house, restaurant services, mandap keeper services etc. 2. 1 proceedings under the insolvency and bankruptcy code ( amendment ) act, 2021 ( hereinafter referred to as ibc ) were initiated against the appellant company. the nclt, delhi 2 vide order dated 11. 09. 2018 admitted the application filed by the financial creditors of the appellant under section 7 of the ibc. thus, on and from 11. 09. 2018 the corporate insolvency resolution process against the appellant commenced and the appellant was subjected to moratorium under section 14 of the ibc on and from 11. 09. 2018. the committee of creditors constituted as per the provisions of the ibc, in its 15 th meeting, unanimously approved the resolution plan submitted by ncj infrastructure private limited on 04. 06. 2019. that thereafter the scheme of 2019 came to be introduced on 01. 09. 2019 under section 125 of the finance act, 2019 for availing the benefit of sabka vishwas ( legacy dispute resolution ) scheme, 2019. the appellant acting through its resolution professional submitted an application within the period prescribed under the scheme 2019. the applicant company was issued form no. 1 on 27. 12. 2019. at this stage, it is required to be noted that the last date for making the application under the scheme 2019 was 31. 12. 2019. thus, form no. 1 was issued within the

prescribed time limit and the 3 tax dues were computed by the appellant as per the scheme, 2019. that thereafter form no. 3 was issued by the designated committee on 25. 02. 2020 determining the amount due and payable under the scheme by the appellant. it appears that as per the said statement for payment of tax dues, the appellant was required to pay rs. 1, 24, 28, 500 / -. under the scheme the appellant / assessee was required to make the payment as per form no. 3 within a time period of 30 days. however, in view of the covid - 19 pandemic, the time to make the payment was extended by the government upto 30. 06. 2020. 2. 2 that the nclt approved the resolution plan of the successful resolution applicant - ncj infrastructure private limited vide order dated 24. 07. 2020. thus, on approval of the resolution plan by the nclt the moratorium period came to an end, with the closure of the insolvency proceedings on 24. 07. 2020. subsequent to the acceptance of the resolution plan by the nclt, the appellant wrote to the successful 4 resolution applicant and the commissioner, cgst and central excise, agra intimating them that the resolution process under the ibc had come to an end and that the appellant is ready and willing to make full amount of rs. 1, 24, 28, 500 / - as ascertained by the designated committee in form no. 3. vide communication dated 09. 10. 2020 to the assistant commissioner, the appellant explained that the settlement amount under the scheme, 2019 could not be paid by the appellant before 30. 06. 2020 due to the legal moratorium imposed upon the company and sought permission to pay the due amount. the joint commissioner, agra vide letter dated 19. 10. 2020 intimated the appellant that the last date for payment under the scheme was 30. 06. 2020, which could not be extended. consequently, the request of the appellant was rejected. since the appellant could not obtain permission for payment of the dues post the lifting of the moratorium, the appellant approached the high court by way of writ tax no. 328 of 2021. by the impugned judgment and order the high court has dismissed the said writ petition on the 5 grounds that ( i ) the high court shall not issue a direction contrary to the scheme ; ( ii ) the relief sought cannot be granted as the designated committee under the scheme is not

existing. 2. 3 feeling aggrieved and dissatisfied with the impugned judgment and order passed by the high court, the original writ petitioner appellant has preferred the present appeal. 3. ms. charanya lakshmikumaran, learned counsel appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case the hon ble high court has seriously erred in dismissing the writ petition and not directing the authority to accept the amount due and payable under the scheme, 2019. 3. 1 it is submitted that the hon ble high court has erred in holding that the designated committee does not exist. it is submitted that the designated committee under the scheme 6 was formed as per rule 5 of the scheme, 2019. the designated committee consists of either the principal commissioners, commissioners, additional commissioners, joint commissioners or deputy commissioners of the central excise and service tax depending on the tax amount involved in the matter. it is submitted that in the present case, the designated committee comprised of the joint commissioner and the commissioner who are officers associated with the offices of respondent nos. 3 and 4. that the designated officers continue to act as the designated committee under the scheme till the completion of the proceedings under the scheme. 3. 2 it is submitted that the designated committee under the scheme is being constituted on a need basis to comply with the orders of the courts across the country. that in many cases the designated committee rejected the applications under the scheme, 2019 erroneously and the different courts set aside the decisions of the designated committee after 7 30. 06. 2020 and directed the designated committee to consider the case of the respective applicants under the scheme, 2019. it is submitted that to reconsider the cases pursuant to the orders passed by the courts / high courts, the cbec issued the instructions dated 17. 03. 2021 allowing for manual processing of declarations under the scheme by the respective designated committees. it is submitted that therefore even after 30. 06. 2020 the respective designated committees carried out their functions under the scheme, however by manual processing. it is submitted that therefore the reasoning given by the hon ble high court that the designated committees are not in existence after 30. 06. 2020 and therefore the appellant is not entitled to any relief, may not be accepted, as even after 30. 06. 2020 and even as per the instructions issued by the cbec, the respective designated committees continued to function and process the declarations manually. 8 3. 3 it is further submitted by learned counsel appearing on behalf

of the appellant that in the instant case the hon ble high court has not properly appreciated the cause for which the appellant could not deposit the amount under the scheme 2019 on or before 30. 06. 2020. it is submitted that at the relevant time and more particularly at the time when the form no. 3 was issued and even during the period under the scheme 2019, the appellant was subjected to the rigor of the provisions of the ibc by virtue of the moratorium period which ended on 24. 07. 2020 when the nclt approved the resolution plan. it is submitted that in the instant case, the appellant bonafidely could not deposit the settlement due, on or before 30. 06. 2020 on account of operation of law. it is next submitted that during the moratorium period, no payment could have been made as per the provisions of the ibc. it is contended that if any payment would have been made during the mortarium period the same would have been in breach of the provisions of the ibc. it is submitted that as per the resolution plan accepted during the insolvency proceedings, 9 the resolution applicant was required to deposit all statutory dues ( including service tax dues ) within 6 months from the effective date into an escrow account. that as per the resolution plan, payment to escrow account shall be treated as effective payment to the relevant operational creditors. it is further contended that in this case, effective date is 24. 07. 2020, the date on which the resolution plan was approved by the nclt. so, service tax dues along with other statutory dues were deposited in an escrow account on 08. 01. 2021 before the expiry of the period of six months. it is accrued that this hon ble court in the case of principal commissioner of income tax vs. monnet ispat & energy ltd., ( 2018 ) 18 scc 786 has held that once a moratorium has been enforced, any existing proceeding against the debtor shall stand prohibited. in this regard, it is submitted that the ibc shall have precedence over any inconsistent statutes. 3. 4 it is vehemently submitted that in any case, no person can be left remediless due to operation of law. that in the 10 present case, the moratorium period under the ibc was extended from 11. 09. 2018 to 24. 07. 2020 due to the covid - 19 pandemic and non - functioning of the nclt. it is contended that even otherwise, the appellant could

not have made any payment during the mortarium period by operation of law and inability to make the payment was owning to the moratorium imposed under the provisions of the ibc. it is urged that therefore, the appellant may not be left remediless when the application under the scheme 2019 was submitted and processed within time. in support of her above submissions and the relief prayed, learned counsel appearing on behalf of the appellant has heavily relied upon the decisions of this court in the case of sunil vasudeva vs. sundar gupta, ( 2019 ) 17 scc 385 ( para 31 ), united air travel services vs. union of india, ( 2018 ) 8 scc 141 ( para 13 ) and union of india vs. asish agarwak, ( 2022 ) scc online sc 543 ( para23 ). 11 3. 5 it is reiterated submitted that the appellant could not make the payment due to legal disability and no one can be expected to do the impossible. reliance is placed on the decisions of this court in the case of gyanichand vs. state of andhra pradesh, ( 2016 ) 15 scc 164 ( para 11 ) and calcutta iron merchants association vs. commissioner of commercial taxes, ( 1997 ) 8 scc 42 ( para 5 ). 3. 6 it is submitted that the appellant cannot be prejudiced and / or made to suffer for no fault of the appellant. reliance is placed on the decision of this court in anmol kumar tiwari & ors. vs. state of jharkhand reported in ( 2021 ) 5 scc424. making the above submissions it is prayed to allow the present appeal and direct the respondents to appropriate the payment of rs. 1, 24, 28, 500 / - towards settlement dues under the scheme 2019 and that discharge certificate be issued to the appellant accordingly. 124. while opposing the present appeal, shri vikramjit banerji, learned asg appearing on behalf of the union of india has vehemently submitted that in the facts and circumstances of the case no error has been committed by the hon ble high court in dismissing the writ petition and refusing to direct the respondents to accept the payment towards the settlement dues under the scheme, 2019. 4. 1 it is submitted that admittedly the scheme was valid upto 30. 06. 2020 and the last date for payment of settlement amount under the scheme, 2019 was 30. 06. 2020. that thereafter the scheme was closed and even

the designated committees were also dissolved and therefore as rightly observed by the hon ble high court, the hon ble high court has no jurisdiction to extend the scheme. it is submitted that if the scheme is extended it would create many complications. 4. 2 it is further submitted that in the present case, admittedly, no payment was made of settlement amount under 13 the scheme prior to 30. 06. 2020 and therefore, the prayer of the original petitioner to extend the time limit to make the payment of settlement amount under the scheme, 2019 was rightly rejected by the commissioner and the same has rightly not been interfered with by the hon ble high court. making above submissions it is prayed to dismiss the present appeal. 5. we have heard the learned counsel appearing for the respective parties at length. 6. at the outset, it is required to be noted and it is not in dispute that the appellant is entitled to the benefit of the settlement under the scheme, 2019. the scheme, 2019 came to be introduced on 01. 09. 2019 and the last date for making the application under the scheme was 30. 12. 2019 and in fact, the appellant submitted the application in form no. 1 on 27. 12. 2019 i. e. before the last date specified for making an 14 application. under the scheme, after the form no. 1 is processed the designated committee was to scrutinize the same and issue the final form no. 3 determining the settlement amount which the applicant was required to deposit within a period of one month from the date of receipt of the final determination form no. 3. that the appellant was issued the form no. 3 on 25. 02. 2020 and was required to pay the settlement dues on or before 25. 03. 2020. however, in view of the covid - 19 pandemic the government extended the time upto 30. 06. 2020. therefore, the appellant was required to deposit the settlement dues on or before 30. 06. 2020. however, even before the scheme, 2019 came to be introduced, the appellant was subjected to proceedings under the ibc which commenced on 11. 09. 2018 when the nclt admitted the application under section 7 of the ibc. thus, the moratorium under the ibc commenced on 11. 09. 2018. the coc approved the resolution plan on 04. 06. 2019, and the same came to be approved by the nclt by order dated 24. 07. 2020. therefore, the moratorium under the ib

##c 15 continued upto 24. 07. 2020. under the provisions of the ibc no payment could have been made during the period of moratorium. therefore, the appellant was statutorily restrained / debarred from making any payment. there was statutory disability on the part of the appellant in making the payment during the moratorium. if the appellant had made any payment during the period of moratorium, the appellant would have committed breach of the provisions of the ibc. therefore, it was impossible for the appellant to make any payment during the period of moratorium. immediately on the moratorium coming to an end, the appellant resolution professional / the successful resolution applicant approached the authority requesting them to accept the settlement amount under the scheme, 2019 as per the form no. 3. such request has been rejected by the commissioner on the rejection has been confirmed by the high court. 7. therefore, the short question which is posed for consideration before this court is, whether, when it was 16 impossible for the appellant to deposit the settlement amount in view of the bar and / or the restrictions under the ibc, the appellant can be punished for no fault of the appellant? in a given case can the appellant be made to suffer for no fault of its own, and be rendered remediless and denied the benefit / relief though it was impossible for the appellant to carry out certain acts, namely to deposit the settlement amount during the moratorium. 7. 1 as per the settled position of law, no party shall be left remediless and whatever the grievance the parties had raised before the court of law, has to be examined on its own merits [ sunil vasudeva ( supra ) ( para 31 ) ]. 7. 2 as observed and held by this court in the case of calcutta iron merchants association ( supra ), no law would compel a person to do the impossible. [ calcutta iron merchants association ( supra ) ( para 5 ) ] 17 7. 3 in the case of gyanichand ( supra ) it was observed by this court that it would not be fair on the part of the court to give a direction to do something which is impossible and if a person has been directed to do something which is impossible, and if he fails to do so, he cannot be held guilty. 8. applying the law laid down by this court in the aforesaid decisions to the facts of the case on hand, the appellant cannot be punished for not doing something which was impossible for it to do. there was a legal impediment in the

way of the appellant to make any payment during the moratorium. even if the appellant wanted to deposit settlement amount within the stipulated period, it could not do so in view of the bar under the ibc as, during the moratorium, no payment could have been made. in that view of the matter, the appellant cannot be rendered remediless and should not be made to suffer due to a legal impediment which was the reason for it and / or not doing the act within the prescribed time. 18 8. 1 now so far as the observations made by the high court to the effect that the high court cannot, in exercise of powers under article 226 of the constitution of india extend the period under the scheme, 2019, to some extent the high court is right. the high court while exercising the powers under article 226 of the constitution of india cannot extend the scheme. however, in the present case it is not a case of extension of the scheme by the high court ; it is a case of taking remedial measures. it is not a case where the appellant did not make any application within the stipulated time under the scheme. this is not a case where the form no. 3 determining the settlement amount was not issued during the validity of the scheme. it is not a case where the appellant deliberately did not deposit the settlement amount and / or there was any negligence on the part of the appellant in not depositing the settlement amount within the stipulated time. as observed hereinabove it is a case where the appellant was unable to make the payment due to the legal impediment and the bar to make the payment during the period of moratorium 19 in view of the provisions of the ibc. in a given case it may happen that a person who has applied under the scheme and who was supposed to make payment on or before 30. 06. 2020, became seriously ill on 29. 06. 2020 and there was nobody to look after his affairs and therefore he could not deposit the amount ; such inability was beyond his control and thereafter, immediately on getting out of sickness he tried to deposit the amount and / or approached the court - can the court close its eyes and say that though there may be valid reasons and / or causes for that person s inability to make the payment, still no relief can be granted to him? there may be extra ordinary cases which are required to be considered on facts of each case. the courts are meant to do justice and cannot compel a person to do something which was impossible for him to do. 8. 2 now so

far as the other ground given by the high court, that the designated committees are not in existence, is concerned, it is required to be noted that the cbce has issued a circular that in a case where the high court / courts have 20 passed an order setting aside the rejection of the claim under the scheme after 30. 06. 2020, the applications can be processed manually. in many cases the high courts have remanded the matter to the designated committees which consist of the officers of the department and the applications thereafter are processed manually. 9. in view of the above, and under the circumstances and for the reasons stated above, as the appellant was not in a position to deposit the settlement amount at the relevant time, more particularly on or before 30. 06. 2020 due to legal impediment and the bar to make the payment of settlement amount in view of the mortarium under the ibc, and as it is found that the appellant was otherwise entitled to the benefit under the scheme as the form no. 1 submitted by the appellant has been accepted, the form no. 3 determining the settlement amount has been issued, the high court has erred in refusing to grant any relief to the appellant as prayed. 2110. in view of the above and for the reasons stated above, the present appeal is allowed. the impugned judgment and order passed by the high court is hereby quashed and set aside. it is directed that the payment of rs. 1, 24, 28, 500 / - already deposited by the appellant be appropriated towards settlement dues under sabka vishwas ( legacy dispute resolution ) scheme, 2019 and the appellant be issued discharge certificate. present appeal is allowed accordingly. however, in the facts and circumstances of the case there shall be no order as to costs... j. ( m. r. shah ).... j. ( b. v. nagarathna ) new delhi ; january 5, 2023 22

m. r. shah, j. 1. feeling aggrieved and dissatisfied with impugned judgment ( s ) and order ( s ) dated 27. 11. 2020 and 06. 12. 2021 passed by the high court of karnataka at kalaburagi bench in regular first appeal ( rfa ) no. 5033 / 2011 and review petition ( rp ) no. 200036 / 2021 respectively, by which, the high court has allowed the said appeal preferred by respondents herein original defendants and has quashed and set aside the judgment signature not verified digitally signed by and decree passed by the learned trial court decreeing the neetu sachdeva date : 2023. 01. 05 16 : 39 : 18 ist reason : 1 suit for specific performance, the original plaintiff has preferred the present appeals. 2. the facts leading to the present appeals in a nutshell are as under : - 2. 1 that respondent no. 1 herein original defendant no. 1 executed an agreement to sell dated 13. 03. 2007 in favour of the appellant herein original plaintiff buyer agreeing to sell the land in question on or before 31. 07. 2007 for a sale consideration of rs. 12, 74, 000 / -. rs. 3 lakhs were paid as earnest money. the receipt was issued by respondent no. 1 for the same. that thereafter, as respondent no. 1 seller did not execute the sale deed, the appellant got issued a legal notice dated 20. 11. 2007 asking the respondent ( s ) to receive the balance sale consideration and execute the sale deed. the seller replied to the legal notice vide reply dated 03. 12. 2007 denying the execution of agreement to sell. that thereafter, the appellant buyer filed the suit for specific performance on 14. 02. 2008 vide o. s. no. 17 / 2008. the original defendants sellers filed their written statement and 2 opposed the suit. the defendants denied the execution of agreement to sell. it was also the case of the defendants in the written statement that the plaintiff was not ready to perform his part of the contract. therefore, the defendants denied readiness and willingness on the part of the plaintiff buyer to perform his part of the contract. 2. 2 both the parties led evidence before the trial court. the plaintiff led evidence by examining witnesses, on his readiness and willingness to perform his part of the contract. it was brought on record that plaintiff went with cash to the seller but the seller did not accept the same. that thereafter

, on appreciation of evidence the learned trial court decreed the suit for specific performance vide judgment and decree dated 30. 09. 2011. the learned trial court believed the case of the plaintiff buyer as to the execution of agreement to sell. the learned trial court also believed the plaintiff s case as to the payment of earnest money of rs. 3 lakhs to the seller. the learned trial court also held that the plaintiff buyer was ready and willing to perform his part of the contract. that pursuant to the 3 judgment and decree passed by the learned trial court, the buyer original plaintiff deposited an amount of rs. 9, 74, 000 / - before the learned trial court which is still reported to be lying with the trial court. 2. 3 feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial court, respondents herein sellers preferred the appeal before the high court. by the impugned judgment and order the high court has allowed the said appeal and has set aside the judgment and decree passed by the learned trial court, mainly on the ground that the plaintiff was not ready and willing to perform his part of the contract. the impugned judgment and order passed by the high court is the subject matter of present appeals. 2. 4 the appellant also filed a review petition which came to be dismissed by the high court, and the judgment passed in the review petition is also the subject matter of one of the appeals. 43. shri k. parmeshwar, learned counsel appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case, the hon ble high court has materially erred in reversing the findings of the trial court on readiness and willingness of the appellant. 3. 1 it is submitted that on appreciation of entire evidence on record the learned trial court recorded findings as to readiness and willingness of the appellant, in favour of the appellant, and such findings were not required to be interfered with by the high court. 3. 2 it is further submitted that all through, out and right from the very beginning, the appellant buyer was ready and willing to perform his part of the contract. he has prayed that the following aspects emerging from the evidence on record be considered, while considering the issue as to readiness and willingness on the part of the appellant to perform his part of the agreement dated 13. 03. 2007 : - 5 ( i ) that the appellant specifically averred in the plaint that he is ready and willing to perform the agreement dated 13.

03. 2007 ; ( ii ) that in the suit notice dated 20. 11. 2007 the plaintiff specifically averred that he is ready and willing to pay the balance sale consideration ; ( iii ) the plaintiff in his evidence stated that he is ready and willing to perform the agreement. in the deposition it was further stated that he approached the defendant seller in the month of june, 2007 and again in july, 2007 with the balance sale consideration. that there is no cross - examination in this regard ; ( iv ) the plaintiff examined pw2 and pw3, the attestors to the agreement to sell, who specifically stated that in june, 2007, the plaintiff approached the defendants and asked them to take the balance sale consideration in cash. that there is no cross - examination in this regard ; 6 ( v ) that the dw - 1 first defendant admitted in her cross - examination that she executed the agreement and that she was the owner of the said property ; ( vi ) that she had affixed her signatures on the agreement and that she received rs. 3 lakhs ; ( vii ) that the appellant had deposited the balance consideration of rs. 9, 74, 000 / - before the learned trial court on 31. 10. 2011. 3. 3 learned counsel appearing on behalf of the appellant buyer has further submitted that as such the defendant took a dishonest stand before the learned trial court and denied the execution of the agreement. it is further submitted that in the written statement, the specific stand taken by the defendants was that no agreement to sell was executed between the parties. it is contended that however, defendant no. 1 subsequently admitted that rs. 3 lakhs were received by her, and a receipt dated 13. 03. 2007 was issued in that regard. 3. 4 it is further contended that even the seller defendant no. 1 took contradictory and dishonest pleas. she initially 7 denied the execution of the agreement, then denied that it was an agreement to sell but only an agreement in respect of a loan transaction. 3. 5 it is next contended by learned counsel appearing on behalf of the appellant that as such there are concurrent findings recorded by the learned trial court as well as the high court on execution of the agreement to sell by defendant no. 1 and to the effect that rs. 3 lakhs were paid by the buyer by way of earnest money and that the agreement to sell was not in respect of security and / or a loan transaction but it was for an outright sale. 3. 6 learned counsel

appearing on behalf of the appellant has heavily relied upon the decision of this court in the case of indira kaur and ors. vs. sheo lal kapoor ; ( 1988 ) 2 scc 488 ( para 8, 9 and 10 ) and the subsequent decision of this court in the case of beemaneni maha lakshmi vs. gangumalla appa rao ; ( 2019 ) 6 scc 233 ( para 14 ) on the aspect of readiness and willingness on the part of the buyer. it is submitted that in the case of indira kaur ( supra ) it was held that no adverse inference can be drawn 8 against the plaintiff as to whether he had the means to pay the balance consideration on the grounds of non - production of passbook, accounts or other documentary evidence. 3. 7 it is submitted that in the case of beemaneni maha lakshmi ( supra ) it was observed and held by this court that failure on the part of the vendee to demonstrate that he was having sufficient money with him to pay the balance sale consideration by the date of his evidence is not of much of consequence. 3. 8 it is further submitted that in the case of ramrati kuer vs. dwarika prasad singh ; ( 1967 ) 1 scr 153 ( para 9 ), it was observed and held by this court that in the absence of a specific prayer asking for the party to produce accounts and their subsequent failure to do so, no adverse inference could be drawn. 3. 9 making the above submissions and relying upon the afore - cited decisions, it is submitted that the high court has materially erred in reversing the findings of the trial court 9 on readiness and willingness on the part of appellant. therefore, it is prayed that the present appeals be allowed and the impugned judgments bet set aside. 4. present appeals are vehemently opposed by shri shailesh madiyal, learned counsel appearing on behalf of the seller - respondents original defendants. 4. 1 learned counsel appearing on behalf of the respondents seller submitted that cogent reasons have been assigned by the high court while reversing the judgment and decree passed by the learned trial court and reversing the findings as to the readiness and willingness on the part of the appellant. 4. 2 it is further submitted that the appellant original plaintiff has not demonstrated and / or led any evidence that he had sufficient means / funds / cash to pay the balance sale consideration. it is submitted that in absence

of such evidence the high court has rightly held that the buyer original plaintiff has failed to establish and prove readiness 10 and willingness on his part to perform the agreement dated 13. 03. 2007. 4. 3 it is submitted that in the written statement itself it was the specific case on behalf of the defendants that the plaintiff was not ready and willing to perform his part of the agreement. 4. 4 learned counsel appearing on behalf of respondents original defendants, has relied upon the decision of this court in the case of j. p. builders and anr. vs. a. ramadas and anr. ; ( 2011 ) 1 scc 429 as well as the recent decision of this court in the case of u. n. krishnamurthy vs. a. m. krishnamurthy ; 2022 scc online sc 840 in support of his prayer to dismiss the present appeals. 5. we have heard learned counsel appearing on behalf of the respective parties at length. 6. at the outset, it is required to be noted that the learned trial court, on appreciation of evidence on record, specifically recorded findings on readiness and willingness 11 on the part of the plaintiff to perform his part of the agreement. the findings recorded on readiness and willingness on the part of the plaintiff were on appreciation of the entire evidence on record. in the legal notice which was issued on 20. 11. 2007, the plaintiff asked the defendant to receive the balance amount and execute the sale deed. in reply to the legal notice, the defendant denied the execution of agreement to sell itself. that thereafter, the plaintiff filed the suit for specific performance in which it was specifically averred that he was ready and willing to perform the agreement dated 13. 03. 2007. in his deposition, the plaintiff specifically stated that he was ready and willing to perform his obligations under the agreement. he further stated that he approached the defendant in the month of june, 2007 and again in july, 2007 with the balance sale consideration. there is no cross - examination in this regard. the plaintiff also examined two witnesses, pw - 2 and pw - 3, who were attestors to agreement to sell dated 13. 03. 2007, who specifically stated that in july, 2007, the plaintiff approached the defendants and asked them to accept the 12 balance sale consideration in cash, to that also there is no cross - examination. the receipt of rs. 3 lakhs by way of earnest money, has been held to be proved by both

the courts below. within a period of one month from passing of the decree, the plaintiff deposited the balance sale consideration i. e., rs. 9, 74, 000 / - before the learned trial court. considering the aforesaid facts and circumstances of the case, it is observed that the high court has materially erred in reversing the decree by reversing the findings of the trial court on readiness and willingness of the appellant. 6. 1 from the impugned judgment and order passed by the high court, it appears that the reasoning given by the high court is that the plaintiff has not proved that he had the cash and / or amount and / or sufficient funds / means to pay the balance sale consideration, as no passbook and / or bank accounts was produced. in the case of ramrati kuer ( supra ) which has been specifically considered by this court in the case of indira kaur ( supra ), it was observed and held as under : - 13 fourthly, it is urged that the respondents did not produce any accounts even though their case was that accounts were maintained and that basekhi singh used to give maintenance allowance to the widows who were messing separately. it is urged that adverse inference should be drawn from the fact accounts were not produced by the respondents and that if they had been produced that would have shown payment not of maintenance allowance but of half share of the income to the widows by virtue of their right to the property. itis true that dwarika prasad singh said that his father used to keep accounts. but no attempt was made on behalf of the appellant to ask the court to order dwarika prasad singh to produce the accounts. an adverse inference could only have been drawn against the plaintiffs - respondents if the appellant had asked the court to order them to produce accounts and they had failed to produce them after admitting that basekhi singh used to keep accounts. but no such prayer was made to the court, and in the circumstances no adverse inference could be drawn from the non - production of accounts. but it is urged that even so the accounts would have been the best evidence to show that maintenance was being given to the widows and the best evidence was withheld by the plaintiffs and only oral evidence was produced to the effect that the widows were being given maintenance by basekhi singh. even if it be that accounts would be the best evidence of payment of maintenance and they had been withheld, all that one can say is that the oral evidence that maintenance

was being given to widows may not be acceptable ; but no adverse inference can be drawn ( in the absence of any prayer by the appellant that accounts be produced ) that if they had been produced they would have shown that income was divided half and half in accordance with the title claimed by the appellant. 6. 2 in the case of indira kaur ( supra ) this court after considering the observations made by this court in the case of ramrati kuer ( supra ) has set aside the findings recorded by three courts below whereby an adverse 14 inference had been drawn against the plaintiff therein for not producing the passbook and thereby holding that the plaintiff was not ready and willing to perform his part of the agreement. it is observed and held that unless the plaintiff was called upon to produce the passbook either by the defendant or, the court orders him to do so, no adverse inference can be drawn. 6. 3 applying the law laid down by this court in the aforesaid two cases to the facts of the case on hand, no adverse inference could have been drawn by the high court. the high court seriously erred in reversing the findings recorded by the learned trial court on the readiness and willingness of the appellant. 7. considering the circumstances narrated hereinabove, we are of the opinion that the high court has materially erred in quashing and setting aside the judgment and decree passed by the learned trial court by reversing the findings on the readiness and willingness of the appellant. under the circumstances, the impugned judgment ( s ) and order ( s ) passed by the high court is / are held to be unsustainable 15 and the same deserve to be quashed and set aside. however, at the same time, to do the complete justice, we are of the opinion that if the plaintiff is directed to pay a further sum of rs. 10 lakhs towards sale consideration, it will meet the ends of justice. 8. in view of the above discussion and for the reasons stated above, the present appeals succeed. impugned judgment ( s ) and order ( s ) passed by the high court are hereby quashed and set aside. the judgment and decree passed by the learned trial court for specific performance of the agreement to sell dated 13. 03. 2007 is hereby restored. however, to do complete justice, we direct the plaintiff to pay to defendant no. 1 a further sum of rs. 10 lakhs to be deposited within a period of eight weeks from today and on such payment, defendant no. 1 is directed to execute

the sale deed in favour of the original plaintiff appellant within a period of two weeks therefrom. defendant no. 1 shall also be permitted to withdraw the amount i. e., rs. 9, 74, 000 / - deposited by the plaintiff on 31. 10. 2011, pursuant to the judgment and decree passed by the 16 learned trial court, with the interest accrued thereon, which shall be paid to defendant no. 1 by an account payee cheque. present appeals are accordingly allowed with the above further directions. no order as to costs. j. ( m. r. shah ) j. ( b. v. nagarathna ) new delhi, january 05, 2023. 17

m. r. shah, j. 1. i. a. no. 118667 of 2021 is allowed. the appellant is permitted to change its name in the cause title from m / s. ashoka metal d cor pvt. ltd. to amd industries limited and the i. a. is accordingly disposed of. 2. feeling aggrieved and dissatisfied with the impugned judgment and order passed by the high court of judicature at allahabad in trade tax revision no. 275 of 2004 by which the high court has dismissed signature not verified digitally signed by neetu sachdeva the said revision application preferred by the appellant herein and has date : 2023. 01. 09 17 : 21 : 27 ist reason : confirmed the order passed by the learned trade tax tribunal, lucknow 1 bench, lucknow ( hereinafter referred to as tribunal ) and the assessing officer holding that for the goods manufactured, the appellant is not entitled to the exemption under section 4 - a ( 5 ) of the u. p. trade tax act ( hereinafter referred to as act ), the manufacturer original revisionist has preferred the present appeal. 3. the facts leading to the present appeal in nutshell are as under : - 3. 1 the appellant herein established the unit for manufacture of spun line crown cork in the year 1986, used as one of the packing materials of the'glass bottles '. the appellant submitted an application on 24. 05. 2000 for granting eligibility certificate under section 4 - a of the act before the divisional level committee for manufacture of double lip dry blend crown under the program of diversification. 3. 2 on the basis of the joint spot inquiry consisting of two members committee, the appellant was granted the eligibility certificate under modernisation instead of eligibility certificate under diversification scheme. 3. 3 at this stage, it is required to be noted that if the goods manufactured would have been considered as a new product under the diversification scheme, the appellant was entitled to the exemption under section 4 - a ( 5 ) of the act. the appellant was denied the exemption 2 under section 4 - a ( 5 ) of the act. the appellant preferred an appeal under section 10 of the act against the order dated 10. 12. 2003 passed under section 4 - a of the act before the trade tax tribunal contending inter alia that the process of manufacture and the machineries used for both the products ( existing and the new ) are different. 3. 4 it was also the case on

behalf of the appellant that the existing ( old ) product cannot be manufactured on the new installed machine and vice - a - versa, the new product cannot be manufactured on the old machines. it was also the case on behalf of the appellant that one of the major raw materials for both the products are not the same and that ultimate use of both the products are different. 3. 5 it was submitted that under the term modernization only those units fall, which by the modern technical produce the same goods and the scheme of modernization do not apply on the units which produce different goods. 3. 6 the appeal preferred by the appellant came to be dismissed. the second appeal before the tribunal also came to be dismissed. it was specifically held that the nature of goods being produced under the modern technology is not different than the goods produced by the unit earlier, as both the produced material are used in packing the bottles of 3 cold drinks and therefore, as the goods manufactured are not different but the same and used for the same purpose, the appeals came to be dismissed. against the order passed by the tribunal, the revision application before the high court has been dismissed by the impugned judgment and order, and, hence the present appeal. 4. shri atul yeshwant chitale, learned senior advocate appearing on behalf of the appellant has submitted that the issue involved in the present appeal is with respect to the interpretation of explanation 5 to section 4 - a ( 5 ) of the act, which grants exemption from payment of trade tax to units, which had undertaken diversification in their units on or after 31. 03. 1995. 4. 1 it is submitted that the appellant is a manufacturer of crown corks used for sealing glass bottles. initially, it was producing spun line crown corks. however, subsequently, it diversified the manufacturing activity to manufacture double lip dry blend crowns for which it imported new plant and machinery and invested a fixed capital cost of rs. 4. 5 crores. 4. 2 it is submitted that the new product being manufactured by the appellant is an eco - friendly product using pvc granules as raw 4 materials. the new product is different from the spun line crown corks manufactured earlier. 4. 3 it is submitted that the new product is an entirely different product from what was manufactured earlier and the use of the product was also different. it is submitted that the new product was an entirely different product in commercial parlance. it is submitted that the mere fact

that both the products are commonly known as corks would have no relevance. it is submitted that similarly the fact that both the products are used for sealing glass bottles would also not be a relevant criterion. the test which was to be applied is whether the goods were different from those manufactured earlier. it is submitted that the appellant was entitled to claim exemption from trade tax since it has undertaken diversification and the goods i. e., double lip dry blend crowns now being manufactured are of a nature different from those manufactured earlier by the appellant being a different commercial commodity. 4. 4 it is submitted that the trade tax tribunal as well as the high court have misconstrued the explanation 5 to section 4 - a ( 5 ) of the act and the notification dated 31. 03. 1995 on the basis of which the appellant had sought eligibility certificate on the ground of diversification. 5 4. 5 it is submitted that in order to be entitled to claim exemption from trade tax on the ground of diversification, the goods had to be of a nature different from those manufactured earlier. ultimate use of the goods is irrelevant for the consideration for exemption from trade tax. different goods can be used for same thing. however, this does not mean that the nature of the goods is the same. it is submitted that even mere fact that both the goods are commonly known as corks is also not a relevant factor for determining if the goods are different goods. 4. 6 the learned senior counsel appearing on behalf of the appellant has drawn our attention to the difference in earlier product and the subsequent product. in support of his submission that the new product is altogether a different product than that of the earlier product, he has also drawn our attention to the difference in process of manufacturing of both the products. 4. 7 it is submitted that both, the trade tax tribunal and the high court have erroneously introduced a new criterion that the use of both products is the same. it is submitted that the criteria of use of goods is neither provided in the section nor in the notification. section 4 - a ( 5 ) and the notification only requires the nature of goods to be different. it is submitted that as per the settled position of law, an exemption notification is required to be given a literal meaning. reliance is placed 6 on the decisions of this court in the case of hansraj gordhandas vs. h. h. dave, assistant collector of central excise customs, surat and ors., air 1970 sc 755 ; parle

biscuits ( p ) ltd. vs. state of bihar and ors., ( 2005 ) 9 scc 669 and assistant commissioner ( ct ) ltu and anr. vs. amara raja batteries limited, ( 2009 ) 8 scc 209. 4. 8 making above submissions and relying upon the above decisions, it is prayed to allow the present appeal. 5. present appeal is vehemently opposed by shri bhakti vardhan singh, learned counsel appearing on behalf of the respondents. 5. 1 it is submitted that in the present case, the appellant established a unit for manufacture of the spun line crown corks used as one of the packing materials of the glass bottles, to be sold to the glass bottlers. it is submitted that after modernisation, the appellant manufactured corks also used as one of the packing materials of the glass bottles. 5. 2 it is submitted that under section 4 - a ( 5 ) of the act and the notification, exemption from trade tax shall be available to a unit, which has undertaken expansion, diversification or modernization and manufactures the different goods from those manufactured earlier by such undertaking. it is submitted that therefore, the issue involved in the present appeal is as to whether the investment of the appellant can be 7 said to be in the unit, having undergone diversification or is in a unit having undergone modernization and whether the goods manufactured by the appellant s unit has undergone diversification or modernization? 5. 3 it is submitted that therefore under section 4 - a ( 5 ) of the act, the requirement for availing the benefits under the head of diversification therefore is that the goods of different nature is required to be produced. it is submitted that the exemption notification issued under section 4 - a also uses the terminology and resultantly the test for diversification is the production of a goods which is different in nature than that was produced earlier. 5. 4 it is submitted that clause ( 5 ) of section 4 - a also makes the legal position clear. it is submitted that the opening sentence of clause ( 5 ) seeks to refer expansion, diversification and modernization and then clarifying in one separate sub - clause the exercise of expansion or modernization means the increase in production and thereafter in another separate sub - clause clarifies diversification to mean that the production of goods of a different kind, distinct and different in nature, a new article as understood in commercial circle. 8 5. 5

it is submitted that the test is how a good is understood in the commercial parlance or commercial circle. it is submitted that the goods manufactured by the appellant prior to the investment exercise was subject to levy under the class of goods namely corks. after the investment exercise, the manufacturing of the double lip dry blend crowns is merely the enhanced quality and quantity of goods namely corks earlier produced before the investment exercise. it is submitted that therefore, the investment was an exercise of modernization and expansion only and the different goods were not manufactured, not entitled to the exemption under section 4 - a ( 5 ) of the act and the notification issued under section 4 - a. in support of his above submissions, learned counsel appearing on behalf of the respondents has placed reliance upon the decision of this court in the case of commissioner of sales tax, orissa and anr. vs. jagannath cotton company and anr., ( 1995 ) 5 scc 527 ( para 5 ). 5. 6 it is further submitted that mere change in technology now the goods being manufactured by the unit of the appellant cannot be considered different in nature than the goods being manufactured earlier by the unit because of the fact that the goods are being utilized for packing the bottles. it is submitted that as per the settled position of law, the exemption notifications are to be strictly construed. 9 5. 7 making above submissions and relying upon the findings recorded by the high court that the goods manufactured now by the appellant cannot be said to be different than that of the goods manufactured earlier and the goods manufactured earlier and the new are used as corks, it is prayed to dismiss the present appeal. 6. heard the learned counsel for the respective parties at length. 7. the short question which is posed for consideration of this court is : - 8. while considering the aforesaid issue, relevant provisions of section 4 - a are required to be referred to, more particularly, section 4 - a ( 2 ) ( c ), section 4 - a ( 5 ) ( b ) ( i ) & ( ii ) and section 4 - a ( 5 ) ( c ), which reads as under : - section 4 - a - exemption from trade tax in certain cases 10 ( 1 ).. ( 2 ) it shall be lawful for the state government to specify in the notification under sub - section ( 1 ) that the exemption from, or reduction in the rate of tax, shall be admissible ( a ). ( b ). ( bb ). ( c ) in