IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Original Side Present :- Hon'ble Justice Amrita Sinha W.P No. 441 of 2018 G.A. No. 2928 of 2018 Abhishek Mukherjee Vs. The Board of Trustees, Kolkata Port Trust & Ors. For the writ petitioner :- Mr. Soumya Mazumder, Adv. Ms. Ashmita Chakraborty, Adv. Ms. Sunita Kar, Adv. For the respondent :- Mr. Probal Kr. Mukherjee, Sr. Adv. Ms. Sujata Mukherjee, Adv. Hearing concluded on :- 04-09-2019 Judgment on :- 01-10-2019 Amrita Sinha, J. The petitioner is an employee of the Kolkata Port Trust. He joined as a Senior Medical Officer on probation for a period of two years vide appointment letter dated 21st June, 2016. The petitioner is guided by the Kolkata Port Trust Employees' (Classification, Control and Appeal) Regulations, 1987 and the Kolkata Port Trust Employees' (Conduct) Regulations, 1987. The duties and functions of the employer that is the Kolkata Port Trust are enumerated in the Major Port Trust Act, 1963 and the Rules and Regulations framed thereunder. By an order dated 13th February, 2018 the petitioner was placed under suspension with immediate effect as a disciplinary proceeding was contemplated against him. The suspension order was valid until further orders. The petitioner was entitled to draw subsistence allowance during the period of suspension, upon application, indicating that he was not employed in any business or vocation for profit/remuneration during the said period. By a confidential letter dated 2nd March, 2018 the Deputy Chairman, Disciplinary and the Appointing Authority of the petitioner sought for explanation from the petitioner as to why his services should not be dispensed with. The petitioner submitted his explanation by a letter dated 8th March, 2018 denying the allegations made in the letter under reference. The disciplinary authority by an order dated 9th May, 2018 intimated the petitioner that the Suspension Review Committee recommended continuation of his suspension for a further period of 90 days with effect from 14th May, 2018. The period of suspension of the petitioner has thereafter been extended from time to time and the said position is continuing till date. The petitioner is aggrieved by issuance of the memo dated 21/25th June, 2018 issued by the Deputy Chairman and Disciplinary Authority intimating the petitioner that an inquiry will be held against him under Regulation 8 of the Kolkata Port Trust Employees' (Classification, Control and Appeal) Regulations. The statement of Article of charge framed against the petitioner, the statement of imputation of misconduct in support of the charge, list of documents, and the list of witnesses were forwarded to the petitioner along with the aforesaid memo. The petitioner was directed to submit a written statement whether he admitted or denied any or all the Article of charges. On receipt of the aforesaid memo of charge the petitioner duly submitted his written statement denying the allegations levelled against him. The Deputy Chairman and the Disciplinary Authority by an order dated 2nd August, 2018 intimated the petitioner that an inquiry officer has been appointed for conducting an inquiry in respect of the charges framed against him. The petitioner has been charged with gross misconduct on the allegation that he indulged in an unethical activity in the ICU of Centenary Hospital on 3rd February, 2018 by issuing order to inject/injecting KCL/insulin to a patient leading to her death immediately, after she was prematurely declared dead by another doctor who was on duty in ICU. The act of injecting the above injection was intentionally done to bring the premature end to the life of the patient. The same amounted to unethical practice by a medical practitioner amounting to gross misconduct and criminal conspiracy. The statement of imputation of misconduct in support of the charges framed against the petitioner mentions that the aforesaid behaviour of the petitioner amounts to gross negligence of duty, criminal conspiracy and lack of devotion to his work and poor conduct, which is in violation of Regulations 3(1) and 3(9) of the Kolkata Port Trust Employees' (Conduct) Regulations, 1987 which is unbecoming of an officer of Kolkata Port Trust. According to the petitioner, the initiation of the disciplinary proceeding against a medical practitioner by his employer on the ground of professional misconduct is not permissible in law and the same is liable to be set aside. It has been submitted that the disciplinary authority is not competent/authorised to inquire into the allegation of professional misconduct. Being a medical practitioner the petitioner is guided by the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. It has been contended that the charges levelled against the petitioner in the show cause notice as well as the charge sheet are in variance to the statement of imputation of misconduct. In the charge sheet the petitioner has been alleged to have committed unethical activity, unethical practice and criminal conspiracy which is unbecoming of a medical professional whereas in the statement of imputation of misconduct the petitioner has been alleged to commit gross misconduct of duty, lack of devotion and poor conduct and violation of the Regulations 3(1) and 3(9) of the Kolkata Port Trust Employees' (Conduct) Regulations, 1987. According to the petitioner the allegations are of such a nature that it requires in depth inquiry/investigation by competent persons having qualification in the field of medicine. The same cannot be subject to the Kolkata Port Trust Employees' (Conduct) Regulations, 1987. The allegation of criminal conspiracy is liable to be dealt with under the Indian Penal Code, 1860 and the same cannot be adjudicated under the service regulations. The petitioner relies upon the judgment delivered by the Hon'ble Supreme Court in the matter of Surath Chandra Chakravarty vs The State of West Bengal & Ors. reported in AIR 1971 SC 752 on the issue that the grounds on which the disciplinary authority proposes to take action have to be reduced to the form of definite charge or charges which have to be communicated to the person charged together with the statement of allegations on which each charge is based. In the instant case the statement of imputation has brought in and included fresh charges which were not initially mentioned /included in the statement of charge. The petitioner relies upon an unreported judgment dated 12th September, 2018 passed by a learned single Judge of this court in WP 24993 (W) of 2017 in the matter of Anjan Bhattacharya vs Registrar General, High Court, Kolkata & Ors. on the issue that the disciplinary proceeding initiated by the employer to inquire into the allegations was not amenable to inquiry in the disciplinary proceeding. It has been submitted that as there is a specified Act according to which the professional conduct of the doctors are regulated, accordingly, any steps taken in furtherance of the disciplinary proceeding is bad in law and liable to be set aside. The petitioner refers to the judgment delivered by the Hon'ble Supreme Court in the matter of Union of India vs H. C. Goyel reported in AIR 1964 SC 364 on the proposition that the inquiring authority merely acts as a delegatee of the disciplinary authority while the ultimate decision to arrive at a finding of guilt is always vested in the disciplinary authority. It has been submitted that it is not necessary that the disciplinary authority will accept the findings of the inquiry officer. The disciplinary authority has every right to disagree with the findings of the inquiry officer and may come up with a different finding. In the instant case, as the disciplinary authority does not have the expertise to deal with the charges levelled against the petitioner, it will invariably rely upon the report of the inquiry officer, who is a medical practitioner, and the petitioner will lose one forum and opportunity to persuade and convince the disciplinary authority to disagree with the findings of the inquiry officer, in the event, the same goes against him. Resultantly, the inquiry officer's report will remain binding on the disciplinary authority and he may not be in a position to differ from the same. In view of the above, the valuable right of the petitioner to make representation against the inquiry report will be an empty formality. Submission has been advanced that the allegation of negligence of duty has to be understood as a case of negligence on the part of a medical practitioner in performance of his duties. The same will constitute medical negligence. The petitioner relies upon the judgment delivered by the Hon'ble Supreme Court in the matter of Jacob Mathew vs State of Punjab & Anr. reported in (2005) 6 SCC 1 wherein the court held that the essential components of negligence are "duty", "breach" and "resulting damage". A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of a medical professional. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something, in the given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to do. It has been submitted that the standard of practice and technique of medical practitioner is enumerated in the Indian Medical Council (Professional Conduct, Conduct and Ethics) Regulations, 2002 which has been framed under the Indian Medical Council Act, 1956. The Indian Medical Council Act, 1956 and the delegated legislation that is the Indian Medical Council (Professional Conduct, Conduct and Ethics) Regulations, 2002 are central legislations and operate in the special field relating to the act and conduct of the medical practitioner. Reliance has been placed upon Section 20A of the Indian Medical Council Act, 1956. The said regulation was framed to specially deal with professional conduct of medical practitioners and it operates in a special field. The Kolkata Port Trust Employees' (Classification, Control and Appeal) Regulations, 1987 and the Kolkata Port Trust Employees' (Conduct) Regulations, 1987 is the general law applicable to all employees. The general law is always subject to the special law. The petitioner relies upon Section 38(1)(3) of the West Bengal Clinical Establishment (Registration, Regulation and Transparency) Act, 2017 which mentions that any complaint of medical negligence against the medical professionals will be dealt with by the respective State Medical Councils. It has been submitted that disciplinary action in respect of professional misconduct can only be undertaken by the competent authority having expertise and none else. It has been argued that the petitioner even though is an employee of the Kolkata Port Trust shall always be guided by the provisions of the Indian Medical Council Act, 1956 and the subordinate legislations. The service regulations are meant for each and every employee of the Kolkata Port Trust and the same deals with the general service conditions of an employee. As the allegations made against the petitioner relates to his professional misconduct the same has to be dealt with by the special law and not the general one. To fortify his argument on the above issue the petitioner has relied upon the judgment delivered by the Hon'ble Supreme Court in the matter of Life Insurance Corporation of India vs D. J. Bahadur & Ors. reported in AIR 1980 SC 2181, KSL & Industries Ltd. Vs Arihant Thread Ltd. & Ors. reported in (2015) 1 SCC 166 and Atmaram Porperties Pvt. Ltd. Vs Oriental Insurance Co. Ltd. reported in (2018) 2 SCC 27. The petitioner is also aggrieved by the act of the respondent KoPT in paying him 50% of his last pay drawn with allowance, as subsistence allowance to him. The petitioner submits that as the regulation under which he has been suspended does not provide for any rate of subsistence allowance accordingly he is entitled to claim full salary during his period of suspension. The petitioner submits that an employee is entitled to receive full emoluments during his period of suspension, in the absence of a provision specifying the percentage or amount that is to be paid on account of subsistence allowance. The petitioner relies upon a judgment delivered by the Hon'ble Supreme Court in the matter of Balvantray Ratilal Patil vs State of Maharashtra reported in AIR 1968 SC 800 wherein the court held that the amount that is to be paid to the public servant during suspension will depend upon the provisions of the statute in that connection. If there is no such provision the public servant will be entitled to his full emolument during the period of suspension. The petitioner relies upon the judgment delivered by this court in the matter of The Secretary of the Managing Committee of Rabindra Smriti (S) B. & Ors. vs M. Bhattacharya & Ors. reported in 2009 (1) CLJ (Cal) 410 wherein the court held that in the absence of a restrictive provision it would be unjust to deny full salary to the employee during the period of suspension. The petitioner cites the judgment delivered by the Hon'ble Supreme Court of India in Delhi Cloth and General Mills Co. Ltd. vs The Workmen & Ors. reported in AIR 1967 SC 469 on the issue that the payment of subsistence allowance during suspension is a matter incidental to the disciplinary proceeding initiated against the petitioner. Institution of a fresh writ petition only for a direction for payment of subsistence allowance will amount to multiplicity of proceedings. The petitioner has prayed for a direction upon the Kolkata Port Trust to pay full salary from the date of suspension after adjusting the amount that has already been paid on account of subsistence allowance. The respondent Kolkata Port Trust submits that the petitioner admitted in his writ petition that he is on probation and subject to the provision of the Kolkata Port Trust Employees' (Classification, Control and Appeal) Regulations, 1987 and the Kolkata Port Trust Employees' (Conduct) Regulations, 1987. It has been submitted that the question of unethical practice by a medical practitioner is a disciplinary issue, which if proved, may lead to suspension of practice, either temporarily or permanently. There are regulatory bodies which regulate the professionals. The same can never stand in the way of an employer from taking disciplinary action against his employee on the ground of misconduct. The petitioner was liable to be proceeded with departmentally as he committed misconduct in his workplace. In the event of his indictment in the disciplinary proceeding the consequences of penalty prescribed in the service regulations may be attracted. The penalty may also include termination of service. It has been submitted that there is a provision for appeal under Regulation 15 of the Kolkata Port Trust Employees' (Classification, Control and Appeal) Regulations, 1987 if an employee is aggrieved by the order of suspension and the order passed for suspension allowance. The petitioner never availed of the alternative efficacious remedy of appeal and straight away approached the Hon'ble High Court for relief. The respondents submit that the proceeding is at a very initial stage and the recording of evidence in the said case has not been initiated till date. It has been submitted that the issuance of charge sheet does not give rise to any cause of action and the writ petition is liable to be dismissed on the ground of being pre- mature. The respondents rely upon the judgment delivered by the Hon'ble Supreme court in the matter of State of Punjab vs Ajit Singh reported in (1997)11 SCC 368 wherein the court held that the High Court was in error in setting aside the charge sheet that was served upon the respondent in the disciplinary proceedings. The court held that till the evidence is produced it cannot be said that the charges contained in the charge sheet are without any basis whatsoever. The respondents submit that in the case at hand the court ought not to enter into the merits of the charge sheet as recording of evidence has not started as yet. There is no scope of judicial review at this stage. The respondents rely upon the judgment delivered by the Hon'ble Supreme Court in the matter of Ram Laxman vs Presiding Officer reported in (2010)10 SCC 201 wherein the court held that if the management has held a disciplinary inquiry against an employee it has got the right to place that employee under suspension, if on the basis of the findings in the departmental inquiry the management is prima facie of the opinion that the employee, on account of charges having been proved, was liable to be dismissed from service. Once the employee is placed under suspension, the management cannot take any work from the suspended employee nor can the employee claim full salary from the management. But the management has to pay the subsistence allowance to the employee so that he may sustain himself. The respondents rely upon the judgment delivered by the Hon'ble Supreme Court in the matter of P. B. Desai vs State of Maharashtra reported in (2013) 15 SCC 481 wherein the court held that whenever the principle of 'duty to take care' is founded on a contractual relationship, it acquires the legal character. The ethical 'duty to treat' on the part of the doctors is clearly covered under the Code of Medical Ethics, 1972 and whenever there is breach of the Code the aggrieved patient or the party aggrieved can approach the relevant disciplinary committee constituted by the State Medical Council concerned. It has been very submitted by the learned senior advocate appearing on behalf of the respondents that the petitioner will be subjected to the disciplinary proceeding in respect of those charges which do not touch his professional conduct. Since the petitioner was an employee of Kolkata Port Trust, the employer by virtue of the service regulations is free and entitled to take appropriate action against the petitioner in accordance with such regulations. The respondents pray for dismissal of the writ petition so that they can proceed with the disciplinary proceeding in accordance with the service regulations. I have heard the submissions made on behalf of both the parties. Admittedly, the petitioner is an employee of the Kolkata Port Trust and is guided by the service regulations. According to the petitioner the charges which have been levelled against him cannot be decided by the disciplinary authority as the same touches his professional conduct. The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 was promulgated for regulating the professional conduct, etiquette and ethics for registered medical practitioners. There is enough provision in the said regulation for punishing and taking disciplinary action against a medical professional who has acted in derogation of the code. The same is a special regulation to address the medical professionals. The primary allegation against the petitioner is unethical activity, unethical practice, and criminal conspiracy. All the three charges points towards the professional conduct of a medical practitioner. The service regulations framed by the employer is applicable to all the employees of the organisation. There may be various issues with regard to/relating to the service conditions of an employee. In such a situation the general law which is applicable for all the employees can be invoked. The moment the charge relates to professional conduct or misconduct the same cannot be addressed by invoking the general law and the same is required to be redressed by application of the special law. It is noteworthy that the patient party did not lodge any FIR or complaint against the petititioner either before the police or the medical regulatory authority. The charges of gross negligence of duty, lack of devotion to work and poor conduct are not reflected in the Article of Charge. In the statement of imputation of misconduct the same has been incorporated. The petitioner has been charged to act contrary to the provisions mentioned in Regulations 3(1) and 3(9) of the Kolkata Port Trust Employees (Conduct) Regulations, 1987. The aforesaid Regulations are applicable to all the employees of the Kolkata Port Trust. Regulation 3(1) mentions that every employee shall, at all times, maintain absolute integrity and devotion to duty and Regulation 3(9) mentions that no employee shall neglect his duties or cause others to neglect their duties including slowing down of work deliberately which may cause loss to the employer or act in a manner which will be prejudicial to the interest of the employer. No employee shall commit any act which is subversive of discipline or good behaviour. The statement of imputation clearly indicates that the behaviour of the petitioner on the fateful day was such that the same amounted to gross negligence of duty, criminal conspiracy and lack of devotion to work and poor conduct. Negligence of duty, lack of devotion and poor conduct relates to the professional conduct of the petitioner and not in respect of the general conduct of an employee. The behaviour complained of, is the act of the petitioner in issuing order to inject/injecting KCL/insulin to a patient leading to her death immediately. The expression 'such behaviour of Dr. Mukherjee amounts to' implies that the professional behaviour of the petitioner is in question and not his general behaviour. Accordingly the petitioner is liable to be tried under the special law and not the general law/regulation covering all the employees of Kolkata Port Trust. An employer always has the right and authority to take steps against an erring employee. But when an employee serving in a specialised field, with special knowledge, is charged with an act which appears to be a transgression to the standard practice then he is liable to be dealt with by the regulatory body which is specially constituted to deal with such action or inaction. When the legislature has enacted specific laws to deal with specified acts of misconduct there is no reason to try the wrongdoer under a different law, not suitable to cater to the appropriate requirement. The charge sheet in the instant case revolves around the professional behaviour of the employee. Embarking upon an inquiry into the said charges, by the employer, who is not authorised in law to adjudicate the same, will amount to initiating and continuing a proceeding without jurisdiction. A proceeding initiated by an authority without jurisdiction, is bad in law and liable to be set aside. The court in the matter of Anjan Bhattacharya (supra) held that as there is a suitable legislation to deal with the issues then no other mechanism including a disciplinary proceeding may be allowed to sub-plant or circumvent it. Hence the argument of the petitioner that the disciplinary authority is not competent to decide the charges levelled against him in the charge sheet is partially correct. The issue of quantum of subsistence allowance to be paid to a suspended employee has been set at rest by the Hon'ble Supreme Court in the matter of Balbantray Ratilal Patil (supra) wherein a three-Judge Bench laid down that what amount should be paid to the public servant during the period of suspension will depend upon the provisions of the statute or statutory rule in that connection. If there is no such provision the public servant will be entitled to his full emoluments during the period of suspension. The decision in the matter of Mahavir Bhattacharya (supra) reiterates the same principal that in the absence of any restrictive provision it would be unjust to deny full salary to an employee during his period of suspension. Admittedly, the service regulations of Kolkata Port Trust do not mention the amount of allowance that is to be paid to an employee when under suspension. In the absence of any specific provision restricting such payment the employee is entitled to receive his full salary during the period of suspension. Fundamental Rules are the general rules guiding central government employees. As the employer has its own set of rules and regulations concerning service of its employees the Fundamental Rules shall not be applicable in the instant case. In view of the discussions made herein above the disciplinary proceeding initiated against the petitioner is liable to be set aside. The same is hereby quashed. As a consequence thereof the petitioner shall be entitled to receive the full salary, less the amount paid as subsistence allowance, during the period of suspension. The respondent authority shall clear the dues of the petitioner within a period of three months from date. The employer will be free to proceed against the petitioner under the service rules concerning his general behaviour, if situation so demands. In view of disposal of the writ petition the connected application is also disposed of. W.P No. 441 of 2018 and G.A. No. 2928 of 2018 are disposed of accordingly. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities. (Amrita Sinha, J.)


REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 443 OF 2020 NAGABHUSHAN …APPELLANT VERSUS THE STATE OF KARNATAKA …RESPONDENT JUDGMENT M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction dated 11.10.2019 passed by the High Court of Karnataka at Bengaluru in Criminal Appeal No. 525/2013, by which the High Court has allowed the said appeal preferred by the respondent – State of Karnataka and has reversed the judgment and order of acquittal passed by the learned trial Court insofar as the appellant – original Signature Not Verified Digitally signed by Chetan Kumar Date: 2021.03.08 17:19:10 IST Reason: accused no.1 is concerned for the offences punishable under Sections 498A and 302 read with 34 of the IPC and consequently convicted the appellant herein – original accused no.1 for the aforesaid offences, original accused no.1 has preferred the present appeal. However, the High Court has confirmed the judgment and order of acquittal insofar as original accused nos. 2 and 3 are concerned. 2. As per the case of the prosecution, original accused no.1 married the deceased, the daughter of PW3 & PW4 nine years ago, prior to the date of the incident. That the deceased was subjected to the mental cruelty and there was demand of dowry from the parents of the deceased Rekha. In that regard, mediation was also held and thereafter PW3 & PW4 gave Rs. 10,000/- and Rs. 20,000/- on two occasions. On 24.06.2010 at about 9 p.m. in the matrimonial home, appellant herein – original accused no.1 took up quarrel with his wife Rekha (deceased) and at that time, he took kerosene and poured the same on her and lit the fire. The deceased was taken to the hospital. That based on the information, the investigating officer went to the hospital and recorded her statement on 27.06.2010 (Exhibit P5). It is alleged that even earlier also on 25.06.2010, the statement of the deceased was recorded by the police (Exhibit D2). On conclusion of the investigation, the investigating officer filed the chargesheet against all the accused for the offences punishable under Sections 498A and 302 read with 34 of the IPC. The case was committed to the Court of Sessions. The accused pleaded not guilty and therefore all of them came to be tried by the learned Sessions Court for the aforesaid offences. 2.1 To prove the case against the accused, the prosecution examined in all 14 witnesses and brought on record the documentary evidences including Exhibit P5 – dying declaration and the medical evidence. That after closure of the evidence on the side of the prosecution, further statements of the accused under Section 313 Cr. P.C. were recorded. Appellant herein – original accused no.1 examined himself as DW1 and also examined a witness as DW2. The accused relied upon the earlier statement of the deceased (Exhibit D2). That on appreciation of the evidence and not believing the dying declaration – Exhibit P5 and having found contradictions in two dying declarations Exhibit P5 and Exhibit D2, the learned trial Court acquitted all the accused for the offences for which they were tried. 3. Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned trial Court, the State of Karnataka preferred appeal before the High Court. By the impugned judgment and order, the High Court has reversed the order of judgment and order of acquittal insofar as the appellant herein – original accused no.1 is concerned and has convicted the appellant herein – original accused no.1 for the offences punishable under Sections 498A and 302 read with 34 of the IPC. The judgment and order of acquittal for original accused nos. 2 & 3 has been confirmed by the High Court. 3.1 Feeling aggrieved and dissatisfied with the impugned judgment and order of the High Court reversing the judgment and order of acquittal and convicting the appellant herein – original accused no.1 for the offences punishable under Sections 498A & 302 read with 34 of the IPC, original accused no.1 has preferred the present appeal. 4. Learned counsel appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case, the High Court has committed a grave error in reversing the well- reasoned judgment and order of acquittal passed by the learned trial Court. 4.1 It is submitted that while reversing the order of acquittal passed by the learned trial Court, the High Court has exceeded in its jurisdiction vested in it under Section 378 of the Cr. P.C. 4.2 It is submitted that as there were material contradictions in two dying declarations and Exhibit D2 was the dying declaration first in time which came to be believed by the learned trial Court, the learned trial Court committed no error in acquitting the accused. 4.3 It is submitted that the learned trial Court on appreciation of evidence, more particularly two dying declarations, disbelieved the subsequent dying declaration (Exhibit P5) and thereby acquitted the accused, the same was not required to be interfered with by the High Court in exercise of the appellate jurisdiction against the judgment and order of acquittal. 4.3 It is further submitted that while believing the dying declaration vide Exhibit P5, the High Court has not appreciated that the same was recorded by PW10 in the presence of PW13, PW8 and parents of the deceased. 4.4 It is submitted that the High Court ought to have appreciated that the earlier dying declaration vide Exhibit D2, which was recorded on 25.06.2010, was recorded immediately on the next day of the incident wherein deceased Rekha has specifically stated that it was an accidental fire due to which she sustained burn injuries. It is submitted that even in the history which was recorded in the hospital, when the deceased Rekha was admitted, it was stated that the deceased had suffered accidental burn injuries. 4.5 It is submitted that the High Court has not properly appreciated the fact that the dying declaration (Exhibit P5) was recorded later on and that too after the parents of the deceased reached to the hospital. 4.6 It is submitted that possibility of tutoring the deceased Rekha so as to make statement against the accused persons cannot be ruled out. It is submitted that therefore at least the appellant is entitled to the benefit of doubt. 4.6 It is submitted that the High Court has not at all appreciated and/or considered the defence version that on the date of incident there was no power supply in the house and therefore the deceased went to the kitchen to prepare the food and found that the gas was empty and thereafter she told the appellant that she would use the kerosene stove to prepare the food, and that while she was preparing the food with the help of candle light and when the same was almost exhausted, she tried to lit another candle but the same had fallen on the ground where the kerosene was already spread while pouring the kerosene to the stove and as a result of which the fire was caught on her clothes. 4.7 It is submitted that even thereafter when the deceased screamed, the appellant – original accused no.1 rushed to the spot and tried to extinguish the fire and while extinguishing the fire, he also sustained burn injuries in his right hand. It is submitted that the aforesaid circumstances which were considered by the learned trial Court while acquitting the accused have not been considered and/or appreciated by the High Court while reversing the order of acquittal passed by the learned trial Court and convicting the accused – appellant herein. 4.8 It is submitted that as such when it was an appeal against the judgment and order of acquittal, the High Court was not justified in reappreciating the oral as well as documentary evidence. It is submitted that only in a case where the findings recorded by the learned trial Court are found to be perverse, the interference by the appellate court against the order of acquittal is warranted. It is submitted that in the present case, as such, the view taken by the learned trial Court was a plausible view, which was on appreciation of the evidences on record and therefore the High Court has committed a grave error in reversing the judgment and order of acquittal passed by the learned trial Court and convicting the accused -appellant herein. 5. We have heard the learned counsel appearing on behalf of the appellant at length. 5.1 Being the statutory appeal against the judgment and order of the High Court reversing the acquittal and thereby convicting the appellant herein – original accused no.1, we have reappreciated the entire evidence on record. 5.2 Before considering the appeal on merits, the law on the appeal against acquittal and the scope and ambit of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal is required to be considered. 5.2.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189, this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under: 12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445) 13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) “… the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.” 14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755) 15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) “(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court’s acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses. 17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) “20. … an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused.” 18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) “(i) The High Court’s decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court’s conclusions are contrary to evidence and documents on record; (iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court’s judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) This Court must always give proper weight and consideration to the findings of the High Court; (vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.” A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401. 19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.” (emphasis supplied) 5.2.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under: “20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC 636).” (emphasis supplied) 5.2.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. 5.3 In the case of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under: “31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on re-appreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233) “10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.” 31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re-appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) “8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court’s judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.” 31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge. 31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 809-10) “5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well- established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions. 31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule.” (emphasis supplied) 6. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and the findings recorded by the High Court, the High Court has specifically observed and held that the finding recorded by the learned trial Court discarding and/or not believing the dying declaration (Exhibit P5) is perverse and contrary to the evidence on record. The High Court has given cogent reasons while believing dying declaration (Exhibit P5) and has also considered in detail what is stated in the later dying declaration (Exhibit P5), vis-à-vis, the medical evidence and the injuries sustained by the deceased. Therefore, as such, the High Court has not committed any error in reappreciating the entire evidence on record and thereafter interfering with the judgment and order of acquittal passed by the learned trial Court, having found the finding recorded by the learned trial Court perverse. 7. Now so far as the merits of the appeal are concerned, it cannot be disputed that in the present case there are two dying declarations, (i) Exhibit P5 and (ii) Exhibit D2. The High Court in the impugned judgment and order has given cogent reasons to rely upon and believe the second dying declaration – Exhibit P5. The High Court has also taken note of the fact that the second dying declaration is reliable and the version in the second dying declaration is supported by the circumstances, namely, the injuries sustained by the deceased; no stove was found at the place of occurrence. The High Court has also taken note of the fact that in the second dying declaration, the deceased has explained her first statement that it was a case of accident and she categorically stated in the second dying declaration that at the time when she gave first statement that it was a case of accident, she was given threats by the appellant herein – original accused no.1 that he will kill her children also. She also stated in the second dying declaration that after her parents came, she got the courage to tell the truth. Therefore, as such, the High Court rightly believed the second dying declaration – Exhibit P5. 8. At this stage, the decisions of this Court in the cases of Nallam Veera Stayanandam v. Public Prosecutor (2004) 10 SCC 769; Kashmira Devi v. State of Uttarakhand (2020) 11 SCC 343; and Ashabai v. State of Maharashtra (2013) 2 SCC 224 are required to be referred to. In the aforesaid decisions, this Court had an occasion to consider the cases where there are multiple dying declarations. In the aforesaid decisions, it is held that each dying declaration has to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of the contents of the other. It is also held that the Court has to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated on its own merits. 9. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, and on evaluation of both dying declarations independently, dying declaration recorded as Exhibit P5 reflects the true state of affairs and the contents are supported by the medical evidence and the injuries sustained by the deceased. The plea put forth by the defence that it was a case of an accident and while pouring the kerosene from kerosene can to the bottle, the same had fallen on the clothes placed on the ground and when the deceased tried to remove the clothes from that place, the candle fell on the ground, as a result, her clothes caught fire and she sustained burn injuries is disbelieved by the High Court considering the circumstances noted by the High Court that the deceased sustained injuries on the face, chest and back and to the upper limbs. The main injuries are found on the upper limbs of the body. Therefore, as rightly observed by the High Court, the aforesaid injuries can be possible when the kerosene is poured on the deceased. According to the defence and as per the evidence of DW1-A1, while putting the kerosene into the stove, accidentally the kerosene had fallen on the ground and also on her clothes, and thereafter when the candle fell on the ground, the same had come in contact with her clothes and kerosene. If that is the case, there would have been injuries to her feet also. However, no burn injuries are found on her feet. No stove was found at the place of occurrence. Therefore, the defence came out with a false case of accidental fire, which, as such, is not supported by any other reliable evidence. On the contrary, this evidence speaks otherwise. Therefore, when A1 came with a false defence and the dying declaration – Exhibit P5 is corroborated by other surrounding circumstances and evidence and after independent evaluation of Exhibit P5 and Exhibit D2, when the High Court has found that Exhibit P5 is reliable and inspiring confidence and thereafter when the High Court has convicted the accused, it cannot be said that the High Court has committed any error. 10. Now so far as the submission on behalf of the accused that even thereafter he tried to extinguish the fire and he also sustained injuries and therefore it cannot be said that the appellant has committed an offence punishable under Section 302 IPC is concerned, at the outset, it is required to be noted that in the present case the prosecution is successful in proving that the accused – appellant herein poured kerosene on the deceased. As per dying declaration Exhibit P5, it has been proved that the deceased was set ablaze by pouring kerosene on her. The act of the accused falls in clause fourthly of Section 300 IPC. It emerges from the evidence on record that the accused poured kerosene on the deceased and not only poured kerosene but also set her ablaze by the matchstick. Merely because thereafter the A1 might have tried to extinguish the fire, that will not bring the case out of clause fourthly of Section 300 IPC. A somewhat similar submission was made before this Court in the case of Santosh v. State of Maharashtra (2015) 7 SCC 641. In the case before this Court, it was contended on behalf of the accused who poured kerosene on the deceased and set her ablaze by matchstick that thereafter they tried to save the deceased by pouring water on her and therefore it was contended on behalf of the accused that by that conduct it cannot be said that the intention of the accused was to cause death of the deceased. The aforesaid has been negated by this Court by observing in paragraphs 9 to 18 as under: “9. Insofar as the first contention that the appellant is not responsible for the death of deceased Saraswatibai, the defence made an attempt to contend that the fire was accidental and that the appellant tried to extinguish the fire in order to save her and in that process, he also suffered burn injuries. The prosecution has adduced cogent evidence to prove that the appellant has caused the death of deceased Saraswatibai. The accused suspected the deceased of infidelity and picking up a fight over it, he kicked her and inflicted fist-blows and further set her on fire by pouring kerosene over her person. PW 6, doctor certified that the deceased was in a fit mental condition to make the statement and PW 7, the Executive Magistrate recorded the dying declaration Ext. 1. In the said dying declaration, the deceased had categorically stated that on the date of incident, the appellant poured kerosene over her person and set her on fire. That accused poured kerosene on the deceased and set her on fire is corroborated by the oral testimony of PW 3, Sindhu Sunil Ingole (sister-in- law) of the deceased. PW 1 Raju Janrao Gavai, neighbour of the deceased who accompanied the deceased to the hospital to whom the deceased is said to have made a statement about the overt act of the accused, had only stated that the deceased told him that the accused beat her and also kicked her. PW 1 had not supported the statement of the deceased in the dying declaration that the accused poured kerosene on her and set her on fire. However, the prosecution has established the guilt of the accused by Ext. 1 dying declaration and the oral evidence of the mother (PW 2) and the sister-in-law (PW 3) and the same cannot be doubted. 10. The learned counsel for the appellant contended that there was no premeditation and the appellant had poured kerosene from the lamp nearby and thereafter the appellant attempted to extinguish the fire by pouring water on her and himself getting burn injuries in the process. It was submitted that the conduct of the appellant in trying to extinguish the fire immediately after the incident would clearly show that there was no intention on the part of the appellant to commit the murder. In support of his contention, he placed reliance on the judgment of this Court in Kalu Ram v. State of Rajasthan [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] . 11. The question falling for consideration is whether the act of the accused pouring water would mitigate the offence of murder. Where the intention to kill is present, the act amounts to murder, where such an intention is absent, the act amounts to culpable homicide not amounting to murder. To determine whether the offender had the intention or not, each case must be decided on its facts and circumstances. From the facts and circumstances of the instant case, it is evident that : (i) there was a homicide, namely, the death of Saraswatibai; (ii) the deceased was set ablaze by the appellant and this act was not accidental or unintentional; and (iii) the post-mortem certificate revealed that the deceased died due to shock and septicaemia caused by 60% burn injuries. When the accused poured kerosene on the deceased from the kerosene lamp and also threw the lighted matchstick on the deceased to set her on fire, he must have intended to cause the death of the deceased. As seen from the evidence of PW 5, panch witness, in the house of the appellant, kerosene lamp was prepared in an empty liquor bottle. Whether the kerosene was poured from the kerosene lamp or from the can is of no consequence. When there is clear evidence as to the act of the accused to set the deceased on fire, absence of premeditation will not reduce the offence of murder to culpable homicide not amounting to murder. Likewise, pouring of water will not mitigate the gravity of the offence. 12. After attending to nature's call, the deceased returned to the house a little late. The accused questioned her as to why she was coming late and he also suspected her fidelity. There was no provocation for the accused to pour kerosene and set her on fire. The act of pouring kerosene, though on the spur of the moment, the same was followed by lighting a matchstick and throwing it on the deceased and thereby setting her ablaze. Both the acts are intimately connected with each other and resulted in causing the death of the deceased and the act of the accused is punishable for murder. 13. Even assuming that the accused had no intention to cause the death of the deceased, the act of the accused falls under clause Fourthly of Section 300 IPC that is the act of causing injury so imminently dangerous where it will in all probability cause death. Any person of average intelligence would have the knowledge that pouring of kerosene and setting her on fire by throwing a lighted matchstick is so imminently dangerous that in all probability such an act would cause injuries causing death. 14. Insofar as the conduct of the accused in attempting to extinguish fire, placing reliance upon the judgment of this Court in Kalu Ram case [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] , it was contended that such conduct of the accused would bring down the offence from murder to culpable homicide not amounting to murder. In Kalu Ram case [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] , the accused was having two wives. The accused in a highly inebriated condition asked his wife to part with her ornaments so that he could purchase more liquor, which led to an altercation when the wife refused to do as demanded. Infuriated by the fact that his wife had failed to concede to his demands, the accused poured kerosene on her and gave her a matchbox to set herself on fire. On her failure to light the matchstick, the accused set her ablaze. But when he realised that the fire was flaring up, he threw water on her person in a desperate bid to save her. In such facts and circumstances, this Court held that the accused would not have intended to inflict the injuries which she sustained on account of the act of the accused and the conviction was altered from Section 302 IPC to Section 304 Part II IPC. 15. The decision in Kalu Ram case [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] cannot be applied in the instant case. The element of inebriation ought to be taken into consideration as it considerably alters the power of thinking. In the instant case, the accused was in his complete senses, knowing fully well the consequences of his act. The subsequent act of pouring water by the accused on the deceased also appears to be an attempt to cloak his guilt since he did it only when the deceased screamed for help. Therefore, it cannot be considered as a mitigating factor. An act undertaken by a person in full awareness, knowing its consequences cannot be treated on a par with an act committed by a person in a highly inebriated condition where his faculty of reason becomes blurred. 16. Within three months of her marriage, the deceased died of burn injuries. In bride burning cases, whenever the guilt of the accused is brought home beyond reasonable doubt, it is the duty of the court to deal with it sternly and award the maximum penalty prescribed by the law in order that it may operate as a deterrence to other persons from committing such offence. 17. This Court on various occasions has stressed the need for vigilance in cases where a woman dies of burn injuries within a short span of her marriage and that stern view needs to be adopted in all such cases. In Satya Narayan Tiwari v. State of U.P. [(2010) 13 SCC 689 : (2011) 2 SCC (Cri) 393] , this Court in paras 3 and 9 has held as under : (SCC pp. 692 & 693) “3. Indian society has become a sick society. This is evident from the large number of cases coming up in this Court (and also in almost all courts in the country) in which young women are being killed by their husbands or by their in-laws by pouring kerosene on them and setting them on fire or by hanging/strangulating them. What is the level of civilisation of a society in which a large number of women are treated in this horrendous and barbaric manner? What has our society become—this is illustrated by this case. *** 9. Crimes against women are not ordinary crimes committed in a fit of anger or for property. They are social crimes. They disrupt the entire social fabric. Hence, they call for harsh punishment. Unfortunately, what is happening in our society is that out of lust for money people are often demanding dowry and after extracting as much money as they can they kill the wife and marry again and then again they commit the murder of their wife for the same purpose. This is because of total commercialisation of our society, and lust for money which induces people to commit murder of the wife. The time has come when we have to stamp out this evil from our society, with an iron hand.” 18. Upon analysis of the evidence adduced by the prosecution, the courts below recorded concurrent findings that the accused caused the death of deceased Saraswatibai and convicted the appellant. It is well settled that concurrent findings of fact cannot be interfered with unless the findings are perverse and unsupportable from the evidence on record. This view has been reiterated in Dhananjay Shanker Shetty v. State of Maharashtra [(2002) 6 SCC 596 : 2002 SCC (Cri) 1444] . In the totality of the facts and circumstances, in our view, the concurrent findings of facts recorded by the courts below are based on evidence and we see no infirmity in the impugned judgment warranting interference”. Therefore, after pouring kerosene on the deceased and thereafter setting her ablaze, thereafter merely because the accused might have tried to extinguish the fire will not take the case out of the clutches of clause fourthly of Section 300 of the IPC. The act of the accused pouring kerosene on the deceased and thereafter setting her ablaze by matchstick is imminently dangerous which, in all probability, will cause death. Therefore, the High Court has rightly convicted the accused for the offence under Section 302 IPC. 11. In view of the above and for the reasons stated above, the present appeal fails. We see no reason to interfere with the impugned judgment and order of conviction passed by the High Court. The appeal deserves to be dismissed and is accordingly dismissed. ……………………………………..J. [Dr. Dhananjaya Y. Chandrachud] New Delhi; …………………………………….J. March 8, 2021. [M.R. Shah]


NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S).4124 OF 2009 AJMER VIDYUT VITRAN NIGAM LIMITED …..APPELLANT(S) VERSUS HINDUSTAN ZINC LTD. AND ANOTHER …..RESPONDENT(S) JUDGMENT Rastogi, J. 1. The instant appeal under Section 125 of the Electricity Act, 2003 (hereinafter referred to as the “Act 2003”) has been preferred at the instance of the distribution company, namely, Ajmer Vidyut Vitran Nigam Limited (for short “AVVNL”), a Government Company incorporated under the Companies Act, 1956 with an object, inter alia, for distribution and supply of electricity, assailing the impugned judgment dated 03rd February, 2009 passed by the Appellate Signature Not Verified Digitally signed by Tribunal for Electricity. JAGDISH KUMAR Date: 2022.02.17 16:35:49 IST Reason: 2. The brief facts culled out from the record and relevant for the purpose are that the Hindustan Zinc Limited (for short “HZL”) has captive generating plant set up at Chanderia in the District of Chittorgarh, State of Rajasthan where it generates electricity primarily for its own consumption and uses the electricity generated at its units/works situated at:- i) Debari in the district of Udaipur; ii) Agucha in the district of Bhilwara; and iii) Dariba in the district of Rajsamand. All the three districts are in the State of Rajasthan and for wheeling of electricity generated in the captive generating plant, HZL uses the distribution system of AVVNL from the point of injection at Chanderia to the points of drawal at its different units/works as indicated above. 3. In other words, the use of the distribution system for wheeling electrical energy from the generating point to the drawal is called “open access facility” and the user of such facility is called “open access consumer”. For the aforesaid purposes, regulations were framed by the Rajasthan Electricity Regulatory Commission (hereinafter referred to as the “Commission”) in exercise of its power conferred under Section 42 read with Section 181 of the Act, 2003 by notification dated 26th May, 2004 called the Rajasthan Electricity Regulatory Commission (Terms and Conditions for Open Access) Regulations, 2004 (for short “Regulations, 2004”) which came to be further amended by 3rd amendment vide notification dated 27th December, 2006 under Section 42 read with Section 181 of the Act, 2003 called the Rajasthan Electricity Regulatory Commission (Terms and Conditions for Open Access) (3rd Amendment) Regulations, 2006(hereinafter being referred to as the “Regulations 2006”). 4. Under the scheme of Regulations 2004, open access customer has been defined under Regulation 2(c) which includes such persons using or intending to use the transmission system or the distribution system or both the licences in the State for transmission or wheeling of electricity in the State and open access agreement is to be executed between the parties in terms of Regulation 12 and the pricing mechanism of unscheduled interchange pricing is to be determined in terms of Regulation 20 as specified by the Commission for the State from time to time. 5. Regulations 2(c), 12 and 20 of Regulations, 2004 which came to be notified on 26th May, 2004 are reproduced thereunder:- “2. Definitions …. c) "Open Access Customer" means a person using or intending to use the transmission system or the distribution system or both of the licensees in the state for transmission or wheeling of electricity in the State; ……... 12. Open Access Agreement (1) An open access customer shall enter into commercial agreements with the transmission and distribution licensees, generators, traders and others, as applicable for use of their transmission and distribution systems; (2) The agreement shall provide, amongst other things for the eventuality of premature termination of agreement and its consequences on the contracting parties; (3) After agreements have been entered into and copies furnished to State Load Dispatch Centre, the State Load Dispatch Centre shall inform the open access customer the date from which open access will be available which will not be later than 3 days from the date of furnishing of agreements.” 20. Unscheduled interchange pricing The payment for mismatch between the schedule and the actual drawal shall be governed by the pricing mechanism as specified by the Commission for the State from time to time.” 6. In terms of the provisions of Regulations 2004, the agreement for short term open access of distribution system and supply of regular and standby HT supply came to be executed between the parties i.e. the appellant and the respondent herein on 22nd September, 2006 and draft format of the open access agreement became effective from 01st May, 2006 and they are concerned with Part III of standby supply and the manner in which the billing has to take place followed with payments. The relevant clauses of the open access agreement for the purpose are reproduced thereunder:- “22. Tariff applicable for stand by supply shall be as applicable for temporary supply as per tariff for electricity supply determined by RERC as applicable to HT large industrial/ mixed load/ bulk supply service. Tariff shall be applied on daily basis as & when such standby supply is availed & shall be subject to minimum annual drawal for 36 days in a financial year. 25. This agreement shall, subject as hereinafter provided, remain in force at least for a period of one year in the first instance commencing from the date of supply and shall remain in force till its termination. Provided that either party shall be at liberty to terminate this agreement or get his contract demand altered by giving one month's notice in writing in that behalf subject to the condition shall reduction in contract demand will be permissible only on completion of initial period of one year including the notice period. The consumer can also get his connection permanently disconnected or get his contract demand reduced on the same day of notice if he is ready to by pay the minimum billing amount equivalent to one month. 29. Billing (1) Ajmer Discom (distribution licensee) shall raise the bills at the end of the month for the use of distribution system for wheeling of Open Access Power, as also for regular and standby supply. The bills shall be for: a. Wheeling charges for the contracted open access power on distribution system as determined by the Commission from time to time. b. Cross-subsidy surcharge as determined by the Commission, from time to time under OA Regulations. c. Additional surcharge as determined by the Commission from time to time under OA Regulation in case the consumer avails open access and receives electricity supply from a licensee other than (i.e. distribution licensee of the area of supply). d. Regular supply as per tariff for supply of electricity, specified by the distribution licensee for temporary supply for large industrial / non domestic/ mixed load service (schedule HT-5). e. Standby supply as per tariff for supply of electricity, specified by the distribution licensee for temporary supply for large industrial/non domestic/ mixed load service, during the period of outage of generating unit effecting open access supply for the days of such drawals. f. Inadvertent drawal of electricity in excess of regular & standby supply as per subclause (e) at temporary supply tariff. g. Reactive energy charges for open access supply at the rates specified by the Commission. (2) The Billing shall be made as per finalized energy accounts issued by SLDC, based on various para-meters at 15 minutes interval, starting from 0.00 hours of the day, stored in ABT complaint meters and as specified by the Commission. Provided, that pending finalization of energy accounts by SLDC, bills shall be issued by the distribution licensee based on provisional energy account. Provided that a soft copy of the provisional and final energy account shall be supplied to open access customer along with the bills. 30. Payments: The open access customer shall arrange the payments for the bills raised by the distribution licensee within the due date indicated on such bills. In the event of monthly bill[s] not paid in full within the period specified on the bills, the Open access customer shall pay the Late Payment Surcharge to the distribution licensee. Late payment surcharge shall be as specified for applicable tariff at clause 28(d) from time to time. This agreement shall be governed by the provisions of the general conditions of supply of the distribution licensee except for the specific provisions made in this agreement. Provided that such specific provisions will apply to the respective part of the agreement. This agreement is liable to be modified subject to revision/final agreement approved by RERC.” 7. Consequently, the Commission in terms of open access regulations specified a standard format of agreement for short term open access for distribution system and for HT supply which came to be served on 03rd January, 2007. It may be relevant to note that under clause 29(1)(f), the standard format of agreement was supplied by the Commission by its letter dated 03rd January, 2007, which is referred to as under:- “29(1)(f). inadvertent drawal of electricity in excess of regular & standby supply as per subclause (e) at temporary supply tariff.” 8. Although, it was forwarded to the respondent for its signatures on 07th June, 2007, Clause 29(1)(f) of the format was different from the standard agreement prescribed in the open access regulations and the change effected was thus (inadvertent drawl of electricity in excess of regular & standby supply as per sub-clause (e) at temporary supply tariff). 9. Pursuant to the release of standard format agreement, the appellant (AVVNL) sought certain clarifications pertaining to alleged contradiction in Clauses 29(1)(f) and 32(4) of the standard format agreement from the Commission. In furtherance thereof, the appellant issued a revised demand for access drawal of electricity on the basis of tariff for regular supply on 30th June, 2007. 10. The reference to the changes in the standard agreement for HT supply and short term open access in distribution came to be examined by the Commission in the Petition No.134/07 and after deliberation, the Commission made substantial changes and altered Clauses 29(1)(e) and 29(1)(f) and 32(4) of the standard format agreement and observed that the inadvertent drawal will be billed at the same rate as regular supply irrespective of whether such inadvertent drawal was done during a period of outage of generating unit affecting open access supply or during the period of shortage of supply. 11. To be more specific, Clause 29(1)(f) earlier provided that all inadvertent supply would be charged as per temporary supply tariff but under order dated 15th September, 2007, the Commission altered the position substantially and held that instead of the tariff for temporary supply, a tariff for regular supply will be payable for inadvertent drawal. The extract of the order passed by the Commission dated 15th September, 2007 with which the present controversy is concerned is referred to under Clauses 29(1)(e) and 29(1)(f) which are reproduced hereunder:- “Clause 29(1)(e) : 13. Under clause 29(1)(e) it has been proposed that in the situation of reduced supply or outage of generating unit effecting supply to Open Access Consumer the tariff for standby supply shall be as per tariff for temporary supply, whereas in the Agreement the situation considered is the outage of generating unit only. Jodhpur Discom has agreed for his proposal, Sh. P.N.Bhandari, also agreed to the proposed change to be incorporated in the Agreement. Clause 29(1)(f) : 16. Under clause 29 of the Agreement it is stipulated that the distribution licensee shall raise the bills for different purposes wherein at para (f) it is for inadvertent excess drawal of electricity. Under clause 29(1)(f), it is now proposed to specify the applicable rate also which is actually missing for billing inadvertent excess supply for the sake of clarify in implementation. Sh. Bhandari stated that since inadvertent supply or drawal, according to Commission's own definition is inevitable mismatch, which cannot be stopped by licensee or the CPP, therefore, levy of excess demand charges in such cases would be outright harsh. Shri Bhandari further submitted that in clause 29 (l)(f) the provision to charge temporary supply tariff on per day basis when drawal has exceeded is quite logical and does not require any change as it being accidental and non intentional. 17. The inadvertent supply in this case is the excess demand over and above the regular supply demand plus standby supply demand which is in excess of regular and standby supply. The existing provision in the Agreement considered inadvertent drawal, which is in excess of regular and standby supply. The standby supply has been further qualified as the supply which is as per sub clause (e) to be billed at temporary supply tariff. This qualification is inadvertent and can be deleted. However, this does not mean that the applicable tariff for inadvertent or excess drawal is temporary supply tariff. The accounting and billing of permissible and excess demand is covered in clause 32 of the Agreement for both the scenarios i.e. with ABT & without ABT. The proposed changes clarify that this inadvertent supply is a part of excess demand of regular supply contract demand. Jodhpur Discom has not agreed to the proposed change stating that drawal of electricity in excess of regular and standby supply should be billed at temporary supply tariff. Jaipur Discom also did not agree to the proposal without stating any reason. Commission’s decision : 20. In view of the above, it is decided that the sub-clause 29(1)(f) of the Agreement be clarified further as under: "(f) drawal of electricity in excess of sum of the contract demand under regular supply and standby supply shall be billed alongwith 29(1)(d) above." 12. No clarification was made by the Commission as to whether the substantial changes which have been made under the open access agreement will apply retrospectively from the date of agreement when executed or prospectively from the date the Commission under its Order dated 15th September, 2007 has given effect to. Although a clarification was made by the Secretary of the Commission to be prospective which indeed holds no authority but when the bills were raised by the appellant for the period from June, 2006 to February, 2008 (for the anterior period) by demand notice dated 12th March, 2008, aggrieved with the same, the respondents filed appeal before the Appellate Tribunal questioning the order of the Commission dated 15th September, 2007 with the grievance that the substantial modification has been made in terms of the standard format agreement and is not merely an interpretation/clarification of the standard format agreement and in the given facts and circumstances, it will apply only prospectively and the demand raised for the anterior period to the substantial changes that the Commission has given effect to by its order dated 15th September, 2007 will not in any manner be construed different on the clarification under terms of open access agreement. 13. The Appellate Tribunal after taking note of the submissions made under its order impugned held that the proposed changes which are effected by the Commission and particularly, in Clause 29(1)(f) are substantial changes in the standard format agreement and further observed that it has altered the position substantially and changed the tariff from temporary supply to regular supply in cases of inadvertent drawal and such substantial changes/amendments which have been made, in no manner, can be read as mere clarification but a substantial alteration in the standard format agreement, therefore, the same can be given effect to only from the date, i.e. 15th September, 2007, the Commission has introduced those amendments under the agreement. The operative part of the Order of the Tribunal is quoted hereunder:- “The impugned order of the Commission says that "any interpretation/clarifications etc. to the order dated 15.09.07 have to be derived from within it". The Commission thus means that retrospectivity or prospectivity of the order has to be determined from the order itself. Apparently, the Commission is avoiding to make a categorical pronouncement about the prospectivity or retrospectivity of the order dated 15.09.07. Nonetheless, the Commission in paragraph 12 of the impugned order, as extracted above in paragraph 12, says that the order dated 15.09.07 is but an interpretation of various clauses of the standard format. Thus the Commission, without making a categorical pronouncement says that the order dated 15.09.07 shall apply with effect from the date standard format was issued. Thus there is a genuine grievance on the part of the appellant which has required the appellant to present the appeal. We find force in the contention of the appellant. The order dated 15.09.07 has to be read as an order amending the standard format issued on 01.03.07 and therefore can be given effect to only from 15.09.07. The respondent No.2 in its petition No. 166 of 2007 had prayed that the order dated 15.09.07 be declared as operative retrospectively from the effective date of agreement i.e. 01.05.06. This prayer could not at all have been allowed because even the format as issued on 01.03.07 could not be given retrospectivity from 01.05.06. The parties had agreed in the original agreement to abide by any change in the terms and conditions of open access notified by the Commission. This does not mean every time there is a change, notified by the Commission, the change will relate back to the effective date of the agreement. Every change can have only prospective effect. Therefore, the change brought about by the order dated 01.03.07 would be effective only from 01.03.07. Similarly, the change brought about by order dated 15.09.07 could be effective from 15.09.07. The petition No. 166 of 2007 presented by respondent No.2 before the Commission only deserved to be dismissed.” 14. The judgement of the Appellate Tribunal dated 03rd February, 2009 became the subject matter of challenge in appeal before us under Section 125 of the Act 2003. 15. Learned counsel for the appellant submits that changes which have been given effect to by the Commission under its order dated 15th September, 2007 are strictly in terms of the scheme of Regulations 2004 which clearly postulate that the parties will abide by any change in the terms and conditions, if any, being notified by the Commission and once the Commission has recorded its satisfaction and introduced those changes in the open access agreement dated 22nd September, 2006, it goes without saying that such clarification stands incorporated and made a part of the agreement from the date of its execution. It is true that to give retrospective effect to any statutory instrument, power is vested with the legislature but in the instant facts and circumstances, where the parties have entered into a commercial agreement(open access agreement) with open eyes that they will abide by any change in the terms and conditions of the open access agreement notified by the Commission, all alterations effected by the Commission indeed will have to be read as a part of the agreement as being incorporated from its very inception. Thus, in the facts and circumstances, the finding of prospective applicability of the changes in Clause 29(1)(f) which has been given effect to by the Tribunal under its order dated 03rd February, 2009 is not sustainable and needs to be interfered with by this Court. 16. Learned counsel for the respondents, on the other hand, while supporting the finding recorded by the Tribunal submits that the Commission under its order dated 15th September, 2007 has made substantial changes in the open access agreement executed between the parties and Clause 29(1)(f), in particular, which was clear in terms that during the period of outage of the generating unit effecting the open access supply because of which all inadvertent supply would be charged as per temporary supply tariff which has been substantially altered by the Commission and instead of the tariff for temporary supply, the tariff for regular supply became payable for inadvertent drawal and this cannot be considered to be a mere clarification under the terms of agreement executed between the parties and if that being so, all such substantial modifications/amendments which are made under the terms of agreement, in no manner, can be read prejudicial to the interest of the parties and if such substantial change which has been given effect to is given retrospective effect, that indeed will seriously prejudice the rights of the respondents, more so, when the conditions of the open access agreement with which the present dispute is concerned in reference to Clauses 29(1)(e) and 29(1)(f) of the agreement are neither in contradistinction nor in contravention to the provisions of the Regulations 2004 or of 3rd Amendment 2006. In the given circumstances, the finding recorded by the Tribunal that such changes being substantial in character may not be read prejudicial to the interest of the parties inter se to be read prospectively and that has been accepted by the respondents and accordingly, the payments are made after 15th September, 2007 in terms of the modified clause 29(1)(f) which the Commission has given effect to and the finding which is duly supported by law needs no interference of this Court. 17. We have heard the learned counsel for the parties and with their assistance perused the material available on record. 18. The question in the instant appeal before us is as to whether the Order dated 15th September, 2007 of the Commission is a mere interpretation/clarification of standard format agreement or the order changes the position substantially the terms of the format having prospective effect for raising future bills. 19. It is not disputed that the Commission issued the draft agreement to give effect to the Regulations, 2004 and further 3rd amendment was made to the regulations on 27th December, 2006 with provisions for unscheduled interchange pricing. The Commission further made amendment in the format on 03rd January, 2007 and included Clause 32 in the agreement. 20. The initial standard format agreement executed between the parties on 22nd September, 2006 effective from 01st May, 2006 undisputedly, refer to inadvertent drawal of electricity in sub-clause 29(1)(f) as quoted above and that such drawal in excess of regular and standby supply was to be charged as per sub-clause (e). Sub- clause (e) simply provided that standby supply would be charged as per temporary rates during the period of outage of generating unit affecting open access supply for the days of such drawal. Clause 22 makes no exception for standby supply during the period of outage of generating unit affecting open access supply. In other words, the “period of outage of generating unit affecting open access supply” in sub-clause (e) is not of any consequence but all that it can mean is that during the time of outage, the standby supply will be charged at the same rate at which temporary supply is charged and if sub-clause (e) and sub-clause (f) are read in conjunction, it clearly manifests that all inadvertent supply will be charged as per temporary supply tariff. Sub-clauses 29(1)(e) and 29(1)(f) which have been substantially altered by the Commission under its Order dated 15th September, 2007 holds that instead of the tariff of temporary supply, the tariff of regular supply will be payable for inadvertent drawal. 21. It may further be noticed that the new sub-clause makes no reference to outage of the generating units or of unscheduled interchange. At the same time, Clause 32(4) under the heading “unscheduled interchange pricing” also mentions excess drawal at the drawal end beyond the permissible limit in case of reduced supply or outage of suppliers generating station. The situation contemplated in Clauses 29(f) and 32(4) deals in different context and if they are overlapping, it will always be open for clarification but the Order of the Commission dated 15th September, 2007, in our view, cannot be considered to be as such a clarification since it has virtually amended the original Clause 29(1)(f) thereby changing the tariff for inadvertent drawal from temporary supply rate to the regular supply rate which indeed is a substantial alteration in the conditions of the agreement. 22. It is also not the case of the appellant that the conditions of open access agreement with which we are presently concerned and particularly, Clauses 29(1)(e) and 29(1)(f) of the agreement are either in contradistinction or in contravention to the Regulations, 2004 and tariff to be charged for inadvertent drawal from temporary supply rate was equally permissible under the scheme of Regulations, 2004 and agreement was accordingly executed between the parties in compliance thereof. 23. In our considered view, the substantial change/modification which has been given effect to by the Commission under its order dated 15th September, 2007 under Clause 29(1)(f) effecting the tariff for inadvertent drawal from temporary supply rate to regular supply rate is indeed a substantial change in the condition of the agreement and prejudicial to the interest of the parties (respondents herein) and cannot be read to apply retrospectively from the date of agreement executed between the parties. 24. Although, we cannot lay down a straight-jacket principle as to what is to be considered a clarification or what may tantamount to a substantial change or modification but if we take note of the guiding principles from Section 152 of the Code of Civil Procedure, 1908 in a way where there is an unintentional omission or mistake or an arithmetic or typographical error, if any, while drafting the agreement that may have been permissible to give an effect at a later stage from its inception but, at the same time, where there is a substantial amendment/alteration in the conditions of agreement, if taken place with its inception, may certainly cause prejudice to the rights of the parties inter se financially or otherwise. As we are dealing with the commercial agreement, if any modification, that too substantial is being permitted to be altered under the agreement executed between the parties at a later stage with retrospective effect even by the statutory authority in the garb of correction or mistake or any typographical error, if any, that may, if prejudicial to the interest of the parties inter se in law be neither permissible nor advisable to give effect anterior to the date of modification/altercation in terms and conditions of the agreement. 25. This Court, by an interim order dated 27th August, 2010, directed the appellant to file an undertaking in the format of an affidavit that in case the appeal fails, the money which has been deposited by the respondents will be refunded subject to adjustment, if any, with interest that may be fixed by the Court at the appropriate time. Taking note of the order dated 27th August, 2010 passed by this Court, directing the appellant to refund the amount deposited by the respondents with interest, we consider it appropriate to clarify that since the parties are in long business relations, let the money which has been deposited by the respondents as noticed by this Court in the order dated 27th August, 2010, be adjusted against the future bills to be raised by the appellant in the terms as agreeable to the parties. 26. Consequently, the appeal stands dismissed with the observations. 27. Pending application(s), if any, stand disposed of. ……………………….J. (AJAY RASTOGI) ……………………….J. (ABHAY S. OKA) NEW DELHI FEBRUARY 17, 2022.