REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1584 of 2021 (@SLP (CRL.) NO. 11816 OF 2019) JASDEEP SINGH @ JASSU …APPELLANT(S) VERSUS STATE OF PUNJAB …RESPONDENT(S) WITH CRIMINAL APPEAL NO.1585 OF 2021 (@SLP(CRL.) NO.11486/2019) CRIMINAL APPEAL NO.1586 OF 2021 (@SLP(CRL.) NO.3301/2020) JUDGMENT M.M. SUNDRESH, J. 1. Heard learned counsel appearing for the parties. 2. Crl. A. No.1584 of 2021 and Crl. A. No.1585 of 2021 are filed by convicted Appellants/Accused 3 and 4 respectively against conviction under Section Signature Not Verified 304 Part I of the Indian Penal Code (IPC) with life sentence, while Crl. A. Digitally signed by RASHI GUPTA Date: 2022.01.07 No.1586 of 2021 is filed by the de facto complainant seeking modification of 17:25:06 IST Reason: the conviction to the sentence punishable under Section 302 IPC. Thus, we shall deal with all the appeals by our common order, particularly, when they emanate and emerge from a common impugned order. BRIEF FACTS 3. Four accused persons were charged, convicted, and sentenced in the following manner: Name of convict Offence under Sentence Section Ramsimran Singh U/s 304 Part I IPC To undergo Makkar imprisonment for life and to pay fine of Rs.10,000/- and in default of payment of fine to undergo further RI for one year. U/s 25 Arms Act To undergo rigorous imprisonment for two years and to pay fine of Rs.2000/- and in default of payment of fine to undergo further RI for three months. U/s 27 Arms Act To undergo rigorous imprisonment for five years and to pay fine of Rs.5000/- and in default of payment of fine to undergo further RI for six months. Amardeep Singh U/s 304 Part I, read To undergo Sachdeva with Section 34 IPC imprisonment for life and to pay fine of Rs.10,000/- and in default of payment of  fine to undergo further RI for one year. U/s 25 Arms Act To undergo rigorous imprisonment for two years and to pay fine of Rs.2000/- and in default of payment of fine to undergo further RI for three months. Jasdeep Singh U/s 304 Part I, read To undergo with Section 34 IPC imprisonment for life and to pay fine of Rs.10,000/- and in default of payment of fine to undergo further RI for one year. Amarpreet Singh U/s 304 Part I, read To undergo Narula with Section 34 IPC imprisonment for life and to pay fine of Rs.10,000/- and in default of payment of fine to undergo further RI for one year. 4. The occurrence took place at about 12:45 a.m. on 21.04.2011 in the area of Baba Rasoi Dhaba, Jalandhar. The motive for the occurrence was that the deceased felt that a raid conducted in the hotel belonging to him and his father (PW6), the Appellant in Crl. A. No.1586 of 2021, was done at the instance of the accused. All the accused are friends of each other. 5. PW6 went in search of the deceased on finding that he had not returned home, though he was in a habit of coming late. On a particular street, he saw the accused grappling with the deceased. It was seen by him in the street light. The occurrence was also witnessed by PW10 who incidentally was a friend of the deceased. PW13 spoke about the common intention on the part of the accused on the previous night to do away with the deceased. 6. In pursuance to the statement made by A3 and A4, saying “what are you seeing now”, A1 took out a gun from his pocket and shot the deceased. A2 took his gun and brandished it against the deceased, prior to the aforesaid statement made by A3 and A4, followed by the shooting by A1. A3 and A4 made the statement pointing to A1, though A2 was already having the gun out. It is only thereafter that A1 took out his gun and shot the deceased. 7. The deceased was taken to the hospital situated about 3 kms from the place of occurrence, notwithstanding the other hospitals nearby. PW23 helped PW6 and PW10 to carry the deceased into the car of PW6. Thereafter PW6 gave the complaint under Exhibit PL. In the complaint, he did not make any statement that A3 and A4 exhorted A1 to shoot, except the statement as referred earlier. However, in his additional statement given under Section 161 CrPC, he improved his version by stating that A3 and A4 instigated A1 to fire. We may note, A6 is a legally qualified person. 8. PW24 took up the investigation and completed the formalities. Recoveries have been made, including of the weapons. 9. Before the trial court, the prosecution examined 27 witnesses and marked documents in support of its case. On behalf of the defense, 16 witnesses have been examined along with the documents. 10.Before the trial court, PW10 and PW23 turned hostile. Upon hearing the counsel appearing for the parties a conviction has been rendered against all the accused for the offences punishable under Section 304 Part I IPC along with life sentence. The trial court reasoned that it is not as if the accused were waiting for the deceased. The deceased went nearer to the accused, as could be seen from the evidence of PW10 under Exhibit PF/1 and PQ. There was only one single shot. Though the deceased fell down the accused did not shoot him thereafter. There was indeed a quarrel preceding the occurrence. The evidence of PW13 was disbelieved with respect to prior concert. It was noted that he was a resident of a place 50 kms away from Jalandhar. The evidence adduced by his cousin (DW1) showed that he was not present at his house at Jalandhar and there was no reason for going to Jalandhar on 20.04.2011. The prosecution did not prove that that day was his birthday and there were other places available nearer to his residence. There was absolutely no material to hold that he knew the accused at any prior point of time. It would be improbable that the accused would make a plan to commit a murder in public, by addressing themselves by names while flaunting their weapons. Further, he did not make any complaint. The statement that he visited days thereafter to seek tires for his jeep was not believed as such tires could be obtained otherwise in a nearer place. 11.Accordingly, holding that there was no premeditation, and the occurrence took place in pursuance to a sudden fight, in a heat of passion, the case was brought under Exception 4 to Section 300 IPC. 12.Appeals were filed by all the parties. The High Court concurred with the views of the trial court. However, it did not specifically deal with the scope of Section 34 IPC as against A3 and A4 which was accordingly done by the trial court. We may also note that the trial court did an in-depth, exhaustive assessment, by considering almost all the material placed before it, including the statements made by the witnesses. 13.A3 and A4 are before us by filing their respective appeals seeking to overturn the judgment rendered by the High Court confirming the one by the trial court. Thus, A1 and A2 have not filed their appeals. We have been informed at the Bar, by the learned Senior Counsel appearing for the de facto complainant/Appellant in Crl. A. No.1586 of 2021 that A1 has since been let out on pre-mature release by the State. We do not wish to state anything on the role of A1 and A2 except to the extent of testing the decision of the High Court and the trial court as to whether the case would fall under Section 304 Part I or Section 302 IPC. Arguments on behalf of the Appellants 14.Since appeals have been filed both by the convicted Appellants and the de facto complainant, we would like to note the arguments of A3 and A4 first and thus the other appeal filed by de facto complainant would be taken along with the arguments of the State. 15.It is submitted by the learned counsel that the evidence of PW13 having been disbelieved, the courts have committed an error in applying Section 34 IPC. There is an improvement with respect to the statement made by PW6. A mere statement per se would not be sufficient to attract Section 34 IPC. It is strange that both of them made the same statement. The presence of PW6 is very doubtful. He had deposed that the deceased used to come late and there was no complaint whatsoever. If A2 brandished the gun before the deceased was shot by A1, it is only logical that A3 and A4 would have asked A2 to shoot first. Even the other eyewitness in PW10 has turned hostile and so also another material witness in PW23. Under those circumstances it is a fit case where the conviction rendered against A3 and A4 are to be set aside. Submission of the Respondents 16.The learned Senior Counsel appearing for the de facto complainant submitted that the accused are influential persons. The case would come under offense punishable under Section 302 IPC. The trial court has committed an error as confirmed by the High Court in bringing it under Section 299 IPC and therefore wrongly applied Section 304 Part I IPC. It is not necessary that an accused will have to do a physical act in order to attract Section 34 IPC. Thus, a mere presence of the accused would suffice. Hence, the appeal filed by the de facto complainant be allowed while dismissing the appeal filed by the Accused-Appellants. 17.The counsel appearing for the State submitted that cogent reasoning was given by the High Court. The trial court considered the entire material available on record. Recoveries made have been proved. Under those circumstances there is no need to interfere with the conviction and sentence. Section 34 IPC 18.We shall first go back into the history to understand Section 34 IPC as it stood at the inception and as it exists now. Old Section 34 of IPC New Section 34 of IPC “When a criminal act is done by “When a Criminal act is done by several persons, each of such several persons, in furtherance of the  persons is liable for that act in common intention of all, each of such the same manner as if the act persons is liable for that act in the was done by him alone” same manner as if it were by him alone” 19.On a comparison, one could decipher that the phrase “in furtherance of the common intention” was added into the statute book subsequently. It was first coined by Chief Justice Barnes Peacock presiding over a Bench of the Calcutta High Court, while delivering its decision in Queen v. Gorachand Gope, (1866 SCC OnLine Cal 16) which would have probably inspired and hastened the amendment to Section 34 IPC, made in 1870. The following passage may lend credence to the aforesaid possible view: “It does not follow that, because they were present with the intention of taking him away, that they assisted by their presence in the beating of him to such an extent as to cause death. If the object and design of those who seized Amordi was merely to take him to the thannah on a charge of theft, and it was no part of the common design to beat him, they would not all be liable for the consequence of the beating merely because they were present. It is laid down that, when several persons are in company together engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in the guilt, unless the act done was in some manner in furtherance of the common intention. It is also said, although a man is present when a felony is committed, if he take no part in it, and do not act in concert with those who commit it, he will not be a principal merely because he did not endeavour to prevent it or to apprehend the felon. But if several persons go out together for the purpose of apprehending a man and taking him to the thannah on a charge of theft, and some of the party in the presence of the others beat and ill-treat the man in a cruel and violent manner, and the others stand by and look on without endeavouring to dissuade them from their cruel and violent conduct, it appears to me that those who have to deal with the facts might very properly infer that they were all assenting parties and acting in concert, and that the beating was in furtherance of a common design. I do not know what the evidence was, all that I wish to point out is, that all who are present do not necessarily assist by their presence every act that is done in their presence, nor are consequently liable to be punished as principals.” 20. Before we deal further with Section 34 IPC, a peep at Section 33 IPC may give a better understanding. Section 33 IPC brings into its fold a series of acts as that of a single one. Therefore, in order to attract Section 34 to 39 IPC, a series of acts done by several persons would be related to a single act which constitutes a criminal offense. A similar meaning is also given to the word ‘omission’, meaning thereby, a series of omissions would also mean a single omission. This provision would thus make it clear that an act would mean and include other acts along with it. 21.Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence. 22.What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34 IPC does not get attracted. 23.It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime. 24.The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act “in furtherance of the said intention”. One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offense. 25.Normally, in an offense committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offense consists of diverse acts done at different times and places. Therefore, it has to be seen on a case to case basis. 26.The word “furtherance” indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion. 27.There may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offense. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid. 28.The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court. 29.The essence and scope of Section 34 IPC can be borne out of excerpts from the following judgements: Suresh v State of U.P. ((2001) 3 SCC 673): “24. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So, the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC. xxx xxx xxx 40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word “act” used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Satrughan Patar v. Emperor, AIR 1919 Pat 111 held that it is only when a court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied.” Lallan Rai v. State of Bihar, [(2003) 1 SCC 268]: “22. The above discussion in fine thus culminates to the effect that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused — though the same however depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor.” Chhota Ahirwar v. State of M.P., [(2020) 4 SCC 126]: “24. Section 34 is only attracted when a specific criminal act is done by several persons in furtherance of the common intention of all, in which case all the offenders are liable for that criminal act in the same manner as the principal offender as if the act were done by all the offenders. This section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. The essence of liability under Section 34 is simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can even be developed at the spot as held in Lallan Rai v. State of Bihar, (2003) 1 SCC 268. There must be a common intention to commit the particular offence. To constitute common intention, it is absolutely necessary that the intention of each one of the accused should be known to the rest of the accused.” Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1): "...... the words of S. 34 are not to be eviscerated by reading them in this exceedingly limited sense. By S. 33 a criminal act in S. 34 includes a series of acts and, further, “act” includes omissions to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By S. 37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things “they also serve who only stand and wait”. By S. 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these sections are reasonably plain. S. 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for “that act” and “the act” in the latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it. S. 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. S. 38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other." Mehbub Shah v. Emperor (AIR 1945 PC 148): "....Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say "the common intentions of all" nor does it say "an intention common to all.” Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of S. 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre- arranged plan…" Rambilas Singh & Ors. v. State of Bihar [(1989) 3 SCC 605]: "7…It is true that in order to convict persons vicariously under section 34 or section 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly…" Krishnan & Another v. State of Kerala [(1996) 10 SCC 508]: "15. Question is whether it is obligatory on the part of the prosecution to establish commission of overt act to press into service section 34 of the Penal Code. It is no doubt true that court likes to know about overt act to decide whether the concerned person had shared the common intention in question. Question is whether overt act has always to be established? I am of the view that establishment of an overt act is not a requirement of law to allow section 34 to operate inasmuch this section gets attracted when "a criminal act is done by several persons in furtherance of common intention of all". What has to be, therefore, established by the prosecution is that all the concerned persons had shared the common intention. Court's mind regarding the sharing of common intention gets satisfied when overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipsa loquitur." Surendra Chauhan v. State of M.P. [(2000) 4 SCC 110]: "11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture….” Gopi Nath @ Jhallar v. State of U.P. [(2001) 6 SCC 620]: “8. …As for the challenge made to the conviction under Section 302 read with Section 23 IPC, it is necessary to advert to the salient principles to be kept into consideration and often reiterated by this Court, in the matter of invoking the aid of Section 34 IPC, before dealing with the factual aspect of the claim made on behalf of the appellant. Section 34 IPC has been held to lay down the rule of joint responsibility for criminal acts performed by plurality or persons who joined together in doing the criminal act, provided that such commission is in furtherance of the common intention of all of them. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action – be it that it was not overt or was only covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre-concerted or pre-arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case.” Ramesh Singh @ Photti v. State of A.P. [(2004) 11 SCC 305]: "12. …As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention, then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration.......... " Nand Kishore V. State Of Madhya Pradesh [(2011) 12 SCC 120)]: “20. A bare reading of this section shows that the section could be dissected as follows: (a) Criminal act is done by several persons; (b) Such act is done in furtherance of the common intention of all; and (c) Each of such persons is liable for that act in the same manner as if it were done by him alone. In other words, these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34. While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 IPC must be done by several persons. The emphasis in this part of the section is on the word “done”. It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity. 21. Under Section 34, every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between “common intention” on the one hand and “mens rea” as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be coincidental with or collateral to the former but they are distinct and different. 22. Section 34 also deals with constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. (Refer to Brathi v. State of Punjab 1991 (1) SCC 519). 23. Another aspect which the court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any predetermined plan to commit such an offence. This will always depend on the facts and circumstances of the case…” Shyamal Ghosh V. State of West Bengal [(2012) 7 SCC 646)]: “87. Upon analysis of the above judgments and in particular the judgment of this Court in the case of Dharnidhar v. State of Uttar Pradesh, [(2010) 7 SCC 759], it is clear that Section 34 IPC applies where two or more accused are present and two factors must be established i.e. common intention and participation of the accused in the crime. Section 34 IPC, moreover, involves vicarious liability and therefore, if the intention is proved but no overt act was committed, the section can still be invoked. This provision carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others, if he had the common intention to commit the act. The phrase “common intention” means a pre-oriented plan and acting in pursuance to the plan, thus, common intention must exist prior to the commission of the act in a point of time. The common intention to give effect to a particular act may even develop on the spur of moment between a number of persons with reference to the facts of a given case." 30. The aforesaid principle has also been dealt with in extenso by the Apex Court in Virendra Singh V. State of Madhya Pradesh ((2010) 8 SCC 407) through the following paragraphs: "15. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words "common intention" implies a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in the case of Amrik Singh & Ors. v. State of Punjab, 1972 (4) SCC (N) 42:1972 CriLJ 465. 16. The essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. Undoubtedly, it is difficult to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. Therefore, in order to find whether a person is guilty of common intention, it is absolutely necessary to carefully and critically examine the entire evidence on record. The common intention can be spelt out only from the evidence on record. 17. Section 34 is not a substantive offence. It is imperative that before a man can be held liable for acts done by another under the provisions of this section, it must be established that there was common intention in the sense of a prearranged plan between the two and the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply. xxx xxx xxx 36. Referring to the facts of this case, the short question which arises for adjudication in this appeal is whether the appellant Virendra Singh can be convicted under section 302 with the aid of section 34 IPC. Under the Penal Code, the persons who are connected with the preparation of a crime are divided into two categories: (1) those who actually commit the crime i.e. principals in the first degree; and (2) those who aid in the actual commission i.e. principals in the second degree. The law does not make any distinction with regard to the punishment of such persons, all being liable to be punished alike. 37. Under the Penal Code, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had a common intention to commit the acts or if the offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly, then also he can be vicariously responsible. Under the Penal Code, two sections, namely, Sections 34 and 149, deal with them circumstances when a person is vicariously responsible for the acts of others. 38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime. 39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed. In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under section 34 IPC, the evidence and documents on record acquire a great significance and they have to be very carefully scrutinized by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent. 40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert. 41. The essence of Section 34 IPC is a simultaneous consensus of the minds of the persons participating in criminal action to bring about a particular result. Russell in his celebrated book Russell on Crime, 12th Edn., Vol. 1 indicates some kind of aid or assistance producing an effect in future and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting that felony. It was observed by Russell that any act of preparation for the commission of felony is done in furtherance of the act. 42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with section 34." On merit 31.Having understood Section 34 IPC, we shall now deal with the case on hand. 32.The evidence of PW13 did not find favour with the courts. The trial court which had the advantage of noting the deposition of the witnesses, chose to disbelieve the evidence adduced, by giving cogent reasons. This evidence was rightly eschewed by the trial court and also by the High Court. There are too many improbabilities in the testimony of PW13. A person who was living 50 kms away remembered the accused and their names and overheard their plot to commit the murder. His evidence was belied by the evidence of DW1 who was none other than his own cousin with whom he was said to be residing at the relevant point of time. 33.The other material witnesses are PW6 and PW10. PW10 had given prior statements. Though he turned hostile despite being a friend of the deceased, the trial court did take into consideration his earlier statement, while coming to the conclusion that there was no premeditation and thus the case would fall under culpable homicide not murder. Though the evidence of PW6 was not rejected, both the courts did find a clear exaggeration on his part. On many occasions PW6 made a concerted effort to improve the case of prosecution. The testimony given by him on the dying declaration, a case inserted by him in his supplementary statement, made subsequently, was also rightly rejected by the courts. This was also supported by the medical evidence. The other part of the evidence with respect to the fight was also dealt with by the courts as evidence available would suggest that it is the deceased who went nearer, and the accused were not stationing themselves waiting for his arrival. Therefore, the aforesaid findings of both the courts in coming to the conclusion that it is not a case which would attract punishment under Section 301 Part I IPC does not suffer from any perversity. In view of the above Crl. A. No.1586 of 2021 stands dismissed. At this stage we also hasten to add that the overt act of A2 being different and in the absence of any appeal filed by him, we do not wish to make any remark for the purpose of acquitting him. 34. The only other issue for consideration is the application of Section 34 IPC to the case of the Appellants. The occurrence was admittedly during the nighttime. It happened on the street. If A3 and A4 had made such a statement in the same voice, they should have addressed A2 instead of A1. A2 was already having a gun and A1 was stated to have taken his gun out only on the statement made by A3 and A4. The reasoning of the trial court in disbelieving the evidence of PW6 as he improved on his case subsequently, ought to be applied for the statement made that A3 and A4 had asked A1 to fire. Admittedly, this was an improvement to the earlier statement made as could be seen from the evidence of PW6 on more than one occasion. Thus, in our considered view both the courts ought to have disbelieved the evidence of PW6 insofar as Section 34 IPC is concerned. There is no evidence at all on record to hold that A3 and A4 were aware of the fact that A1 was having a gun with him. The prosecution wanted to implicate A3 and A4 mainly on the evidence of PW13. Once the said evidence was not accepted, more care ought to have been taken before convicting A3 and A4 under Section 34 IPC. We have no difficulty in holding that a common intention can be formed at the time of the occurrence. However, the evidence available is not sufficient enough to hold that Section 34 IPC is attracted as against A3 and A4, especially when the testimony of PW13 did not find favour with the courts. We further note that except the statement said to have been made by A3 and A4, there was no other material to implicate them. 35. Now, we shall come to the statements. The statement made by A3 and A4 is as follows: “what are you seeing now”. The question is as to whether the said statement would constitute an offense punishable under Section 304 Part I IPC. We have already noted the fact that had A2 fired at the deceased in pursuance to the statement made by A3 and A4 the situation would have been different. It is possible that the said statement has been made only to attack otherwise the deceased. Suffice it is to hold that the prosecution has not proved its case beyond reasonable doubt as against A3 and A4 by reflecting the offence committed by A1, taking umbrage under Section 34 IPC. 36. The High Court did not even consider the import of Section 34 IPC as against A3 and A4. We find that the approach of the trial court cannot be sustained to that extent in the light of our discussion. Thus, we are inclined to set aside the judgment of the High Court confirming that of the trial court as against the Accused-Appellants namely A3 and A4 alone are concerned. 37. In the result Crl. A. No.1584 of 2021 and Crl. A. No.1585 of 2021 are allowed. The Crl. A. No.1586 of 2021 stands dismissed. ……………………………J. (SANJAY KISHAN KAUL) ……………………………J. (M.M. SUNDRESH) New Delhi, January 07, 2022


CASE NO.: Appeal (civil) 8605 of 2002 PETITIONER: BANNARI AMMAN SUGARS LTD. RESPONDENT: COMMERCIAL TAX OFFICER AND ORS. DATE OF JUDGMENT: 22/11/2004 BENCH: ARIJIT PASAYAT & C.K. THAKKER JUDGMENT: JUDGMENT 2004 Supp(6) SCR 264 The Judgment of the Court was delivered by ARIJIT PASAYAT, J. : These two appeals involve identical questions and, therefore, are disposed of by this common judgment after noticing the factual position, so far as they are relevant. The appellants question correctness of the judgment rendered by a Division Bench of the Madras High Court which held that the withdrawal of benefits extended to the appellants as subsidy was in order. The appellants questioned legality or the G.O.Ms No. 989 dated 1.9.1988 directing discontinuance of purchase tax exemption in case of mills which exceeded the ceiling of Rs. 300 lakhs during the period of five years, and Government letter dated 28.12.1988 which made the aforesaid G.O. Ms. No. 989 of 1.9.1988 operative retrospectively from 1.4.1988. Initially the writ petitions were filed before the High Court, but after constitution of the Tamil Nadu Taxation Special Tribunal (hereinafter referred to as the 'Tribunal') the writ petitions were transferred to the Tribunal which held that on application of the principles of promissory estoppel and legitimate expectation, the withdrawal of benefit was not sustainable in law. The State questioned correctness of the judgment before the High Court which, as noted above, held the G.O.Ms, and the Govt. letter to be valid, reversing the conclusions arrived at by the Tribunal. The judgment forms subject matter of challenge in these appeals. In support of the appeals the primary stands raised by the appellants are : 1. The doctrines of promissory estoppel and legitimate expectation were applicable to the facts of the case. There was no material to show existence of any overriding public interest to rule out application of the aforesaid doctrine there was no scope for retrospective withdrawal. In any event, before withdrawal of the benefits, no opportunity of hearing was granted. The High Court erroneously came to hold that the State Government had not filed any counter. The materials which were produced before the High Court and on the basis of which it is decided that the decision of the Government is in order were not even pleaded in the pleadings and during arguments. The appellants were taken by surprise by production of materials which were not even disclosed to the appellants. The contents of the files which were produced before the High Court and on which reliance was placed to hold against the appellants are not known to the appellants. In other words, there was clear violation of the principles of natural justice. The Government's letter dated 28.12.1988 refers to some decision, but in the absence of any authentication as required under Article 166 of the Constitution of India, 1950 (in short the 'Constitution') the same is ineffective. In any event, the retrospective withdrawal of the benefit on the basis of an executive decision is impermissible. In response, learned counsel for the respondent-State submitted that the appellants have failed to adduce any evidence or material to show that were in any way induced by any governmental action to set up industries. In fact, the Government of Tamil Nadu vide G.O.Ms. No. 1294 dated 24.10.1975 granted exemption from purchase tax on sugarcane in favour of sugar mills established in "co-operative and public sectors" in the form of annual subsidy equivalent to purchase tax on sugarcane. There was no scope for any mis-understanding that it applied to any private sector participation in the sphere of sugar manufacturing. The commercial productions were started in case of appellants in C.A. No. 8606/2002 i.e. Ponni Sugars (Erode) Ltd. v. Govt. of Tamil Nadu & Ors., on 27.1.1984 and in C.A. 8605/ 2002 i.e. Bannari Amman Sugars Ltd v. Commercial Tax Officer & Ors. on 22.1.1986. The appellants only made representation to Government subsequently claiming exemption at par with the cooperative and public sector mills. As there was no inducement or assurance, the question of any promissory estoppel did not arise. So far as legitimate expectation aspect is concerned, it is too well known that the benefit extended can be withdrawn and with this knowledge if the units are set up, the principle of legitimate expectation does not apply. The High Court recorded the following findings on the factual aspects. (1) The respondents have established their units prior to the Government orders granting the subsidy and they have no vested right to claim exemption. (2) No inducement was made in the Government orders to establish the units. (3) The respondents have not acted on the basis of the Government Orders for establishing the units. (4) The grant of subsidy is a concession and the Government has got good reasons for modifying the scheme in public interest. (5) No prejudice is caused to the respondents since the scheme was interested to make the units viable and the modified scheme provides for safeguards to that extent. (6) The Order granting subsidy can be withdrawn in public interest. The Government has exercised their right to modify the scheme in the interest of public revenue. The stand taken by the present appellants before the Tribunal and the High Court was rejected. With reference to the files produced, certain factual conclusions were arrived at, the correctness of those form the core challenge in these appeals. Estoppel is a rule of equity which has gained new dismensions in recent years. A new class of estoppel has come to be recognized by the courts in this country as well as in England. The doctrine of 'promissory estoppel' has assumed importance in recent years though it was dimly noticed in some of the earlier cases. The leading case on the subject is Central London Property Trust Ltd. v. High Trees House Ltd., [1947] 1 KB 130. The rule laid down in High Trees case (supra), again came up for consideration before the King's Bench in Combe v. Bombe, [1951] 2 KB 215. Therein the court ruled that the principle stated in High Trees's case (supra), is that, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word. But that principle does not create any cause of action, which did not exist before; so that, where a promise is made which is not supported by any consideration, the promise cannot bring an action on the basis of that promise. The principle enunciated in the High Trees case (supra), was also recognized by the House of Lords in Tool Metal Manufacturing Co. Ltd. v. Tungsten Electric Co. Ltd., [1955] 2 All ER 657. That principle was adopted by this Court in Union of India v. Indo-Afghan Agencies Ltd., AIR (1968) SC 718 and Turner Morrison and Co. Ltd. v. Hungerford Investiment Trust Ltd., [1972] 1 SCC 857. Doctrine of "Promissory Estoppel" has been envolved by the courts, on the principles of equity, to avoid injustice. "Promissory Estoppel" is defined in Black's Law Distionary as "an estoppel which arises when there is a promise which promissor should reasonable expect to induce action or forbearance of a definite and substantial character on the part of promisee, and which does include such action or forbearance, and such promise is binding if injustice can be avoided only by enforcement of promise". So far as this Court is concerned, it invoked the doctrine in Indo Afghan Agencies's case (supra) in which is was, inter alia, laid down that even though the case would not fall within the terms of Section 115 of the Indian Evidence Act, 1872 (in short the 'Evidence Act') which enacts the rule of estoppel, it would still be open to a party who had acted on a representation made by the Government to claim that the Government should be bound to carry out the promise made by it even though the promise was not recorded in the form of a formal contract as required by Article 299 of the Constitution. [See Century Spinning Co. v. Ulhasnagar Municipal Council, AIR (1971) SC 1021, Radhakrishna v. State of Bihar, AIR (1977) SC 1496, Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., [1979] 2 SCC 409, Union of India v. Godfrey Philips Indian Ltd., [1985] 4 SCC 369 and Dr. Ashok Kumar Maheshwari v. State of U.P. & Another, (1998) 2 Supreme 100]. In the backdrop, let us travel a little distance into the past to understand the evolution of the doctrine of "promissory estoppel". Dixon, J. an Australian Jurists, in Grundt v. Great Boulder Gold Mines Prorietary Ltd., [1939] 59 CLR 641 (Aust) laid down as under : "It is often said simply that the party asserting the estoppel must have been induced to act to his detriment. Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine. That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumptions were deserted that led to it". The principle, set out above, was reiterated by Lord Denning in High Trees's case (supra) This principle has been evolved by equity to avoid injustice. It is nether in the realm of contract nor in the realm of estoppel. Its object is to interpose equity shorn of its form to mitigate the rigour of strict law, as noted in Anglo Afghan Aencies 's case (supra) and Sharma Transport Represented by D.P. Sharma v. Government of A.P. and Others, [2002] 2 SCC 188. No vested right as to tax holding is acquired by a person who is granted concession. If any concession has been given it can be withdrawn at any time and no time limit should be insisted upon before it was withdrawn. The rule of promissory estoppel can be invoked only if on the basis of representation made by the Government, the industry was established to avail benefit if of exemption. In Kasinka Trading and Anr. v. Union of India and Anr., [1995] 1 SCC 274 it was held that the doctrine of promissory estoppel represents a principle evolved by equity to avoid injustice. A person may have a 'legitimate expectation' of being treated in a certain way by an administrative athority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. The doctrine of legitimate expectation has an important place in the developing law of judicial review. It is, however, not necessary to explore the doctrine in this case, it is enough merely to note that a legitimate expectation can provide a sufficient interest to enable one who cannot point to the existence of a substantive right to obtain the leave of the court to apply for judicial review. It is generally agreed that 'legitimate expectation' gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation to be confined mostly to right to a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine does not give scope to claim relief straightway from the administrative authorities as no crystallized right as such involved. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words, where a person's legitimate expectation in not fulfilled by taking a particular decision then decision maker should justify the denial of such expectation by showing some overriding public interest. (See Union of India and Others. v. Hindustan Development Corporation and Others, AIR (1994) SC 998). While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heart beat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validity for discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does if really satisfy the test of reasonableness. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in different manner which does not disclose any discernible principle which is reasonable itself small be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary. This Court's observations in G.B. Mahajan v. Jalgaon Municipal Council, AIR (1991) SC 1153 are kept out of lush field of administrative policy except where policy is inconsistent with the express or implied provision of a statute which creates the power to which the policy relates or where a decision made in purported exercise of power is such that a repository of the power acting reasonably and in good faith could not have made it. But there has to be a word of caution. Something overwhelming must appear before the Court will intervene. That is and ought to be a difficult onus for an applicant to discharge. The Courts are not very good at formulating or evaluating policy. Sometimes when the Courts have intervened on policy grounds the Court's view of the range of policies open under the statute or of what is unreasonable policy has not got public acceptance. On the contrary, curial views of policy have been subjected to stringent criticism. As Professor Wade points out (in Administrative Law by H.W.R. Wade, 6th Edition) there is ample room within the legal boundaries for radical differences of opinion in which neither side is unreasonable. The reasonableness in administrative law must, therefore, distinguish between proper course and improper abuse of power. Nor is the test Court's own standard of reasonableness as it might conceive it in a given situation. The point to note is that the thing is not unreasonable in the legal sense merely because the Court thinks it to be unwise. In Hindustan Development Corporation's case (supra), it was observed that decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest where the doctrine of legitimate expectation can be applied. If it is a question of policy, even by ways of change of old policy, the Courts cannot intervene with the decision. In a given case whether there are such facts and circumstances giving rise to legitimate expectation, would primarily be a question of fact. As was observed in Punjab Communications Ltd. v. Union of India of Others, AIR (1999) SC 1801, the change in policy can defeat a substantive legitimate expectation if it can be justified on "Wednesbury reasonableness." The decision-maker has the choice in the balancing of the pros and cons relevant to the change in policy. It is, therefore, clear that the choice of police is for the decision-maker and not the Court. The legitimate substantive expectation merely permits the Court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. A claim based on merely legitimate expectation without anything more cannot ipso facto give a right. Its uniqueness lies in the fact that it covers the entire span of time; present, past and future. How significant is the statement that today is tomorrows' yesterday. The present is as we experience it, the past is a present memory and future is a present expectation. For legal purposes, expectation is not same as anticipation. Legitimacy of an expectation can be inferred only if it is founded on the sanction of law. As observed in Attorney General for New Southwale v. Quinn, [1990] 64 Australian LJR 327 to strike the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the Courts adrift on a featureless sea of pragmatism. Moreover, the negotiation of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law. If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power of violation of principles of natural justice, the same can be questioned on the well known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider, but the Court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognised general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the Courts for the review of administrative action must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is 'not the key which unlocks the treasure of natural justice and it ought not to unlock the gates which shuts the Court out of review on the merits,' particularly, when the elements of speculation and uncertainty are inherent in that very concept. As cautioned in Attorney General for New Southwale's case the Courts should restrain themselves and respect such claims duly to the legal limitations. It is a well meant caution. Otherwise, a resourceful litigant having vested interest in contract, licences, etc. can successfully indulge in getting welfare activities mandated by directing principles thwarted to further his own interest. The caution, particularly in the changing scenario becomes all the more important. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. As noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interest of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In determining whether there is any unfairness involved the nature of the right alleged to have taken infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time enter into judicial verdict, the reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Canalisation of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. (See Parbhani Transport Co-operative Society Ltd. v. Regional Transport Authority, Aurangabad and Others, AIR (1960) SC 901; Shree Meenakshi Mills Ltd. v. Union of India, AIR (1974) SC 365; Hari Chand Sarda v. Mizo District Council and Another, AIR (1967) SC 829; Krishnan Kakkanth v. Government of Kerala and Others, AIR (1997) SC 128 and Union of India and Another v. International Trading Co. and Another, [2003] 5 SCC 437. Article 166 of the Constitution deals with the conduct of Government business. The said provision reads as follows : "166. Conduct of business of the Government of a State. - (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocating among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion." Clause (1) requires that all executive action of the State Government shall have to be taken in the name of the Governor. Further is no particular formula of words required for compliance with Article 166(1). What the Court has to see is whether the substance of its requirement has been complied with. A Constitution Bench in R. Chitralekha Etc. v. State of Mysore and Ors., AIR (1964) SC 1823 held that the provisions of the Article were only directory and not mandatory in character and if they were not complied with it could still be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor. Clause (1) does not prescribe how an executive action of the Government is to be performed; it only prescribes the mode under which such act is to be expressed. While clause (1) is in relation to the mode of expression, clause (2) lays down the ways in which the order is to be authenticated. Whether there is any Government order in terms of Article 166; has to be adjudicated from the factual background of each case. In order to invoke the doctrine of promissory estoppel clear, sound and positive foundation must be laid in the petition itself by the party invoking and doctrine the bald expressions without any supporting material to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. The Courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the Courts have to do equity and the fundamental principles of equity must for ever be present in the mind of the Court. In Shrijee Sales Corporation and Anr. v. Union of India, [1997] 3 SCC 398 it was observed that once public interest is accepted as the superior equity which can override individual equity the principle would be applicable even in cases where a period has been indicated for operation of the promise. If there is a supervening public equity, the Government would be allowed to change its stand and has the power to withdraw from representation made by it which induced persons to take certain steps which may have gone adverse to the interest of such persons on account of such withdrawal. Moreover, the Government is competent to rescind from the promise even if there is no manifest public interest involved, provided no one is put in any adverse situation which cannot be rectified. Similar view was expressed in M/s. Pawan Alloys and Casting Pvt. Ltd. Meerut Etc. Etc. v. U.P. State Electricity Board and Others, AIR (1997) SC 3910 and in Sales Tax Officers and Anr. v. Shree Durga Oil Mills and Anr., [1999] 1 SCC 573, it was further held that the Government could change its industrial policy if the situation so warranted and merely because the resolution was announced for a particular period, it did not mean that the government could not amend and change the policy under any circumstances. If the party claiming application of the doctrine acted on the basis of a notification it should have known that such notification was liable to be amended or rescinded at any point of time, if the government felt that it was necessary to do so in public interest. In view of the factual position recorded by the High Court that at the point of time the appellants' units were set up and the commercial production started there was no assurance or promise. The doctrine of promissory estoppel had no application to the facts of the case at that stage. We find no substance in the plea that before a policy decision is taken to amend or alter the promise indicated in any particular notification, the beneficiary was to be granted an opportunity of hearing. Such a plea is clearly unsustainable. While taking policy decision, the government is not required to hear the persons who have been granted the benefit which is sought to be withdrawn. The question of legitimate expectation arises according to the appellants after the benefits were granted by the concerned G.O.Ms. At this juncture we would like to take note to certain factual positions highlighted by the appellants which are practically undisputed by the respondents. Contrary to what the High Court has stated, it appears from record that counter affidavits were filed. The reasons which have weighed with the High Court to uphold the action of the State were not pleaded before the High Court specifically, and the High Court cull out those from the files which were produced before it. Though the appellants were not entitled to any opportunity of hearing before alteration of the benefits flowing from the notifications or withdrawal of any benefit, yet when the State has not taken any specific stand justifying the withdrawal and the High Court referred to the files to put its seal of proof, notwithstanding non- requirement for granting any opportunity before the withdrawal, principles of natural justice certainly were applicable, since the High Court with reference to the files recorded findings on the basis thereof. As noted above no specific grounds or reasons were indicated to justify the withdrawal in the affidavits filed before the Tribunal or the High Court, as the case may be. As the correctness of factual basis justifying withdrawal is in issue, fair play certainly warranted grant of opportunity to the appellants to present its side of the picture. Further, a definite plea was taken that there was no scope for retrospective withdrawal of benefit by an executive order. The High Court has not dealt with the issue. The same also needs to be examined. Above being the position, decision of the High Court by placing reliance on the files to hold that the withdrawal was justified, is not tenable in law and in the fitness of things, the High Court should hear the matter afresh and taken decision on those two issues. It is made clear that we have not expressed any opinion on those issues on the facts of the present case. It is to be noted that no privilege was claimed from production of the file as the files were produced before the High Court and in fact the High Court referred to the materials on the files to affirm State's action. We direct that the State Government, if it so chooses, shall file its further counter-affidavits before the High Court within six weeks from today indicating the reasons which warranted the withdrawal of the benefits extended. The plea of the appellants regarding legitimate expectation shall be considered by the High Court in the light of materials to be placed by the respondents by affidavits as directed above. We make it clear that we have not expressed any opinion on the factual aspects except indicating the principles underlying legitimate expectation. Another point which was specifically raised before the High Court but has not been dealt by it is the legality of the action in directing retrospective withdrawal of the benefit by a letter of the Government. Whether the same is permissible in law has to be decided by the High Court. To the aforesaid limited extent, the matter is remitted to the High Court for fresh consideration. The appeals are disposed of accordingly without any order as to costs.


W.P.No.11774 of 2014 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.11.2020 CORAM THE HONOURABLE MR. JUSTICE M.DHANDAPANI W.P.No.11774 of 2014 M.Suresh ... Petitioner vs. 1. The Union of India, rep. by its Secretary to Government, Ministry of Home Affairs, New Delhi. 2. The Director General, Central Industrial Security Force, CGO Complex, Lodhi Road, New Delhi – 110 003. 3. The Inspector General, Central Industrial Security Force, Hyderabad. 4. The Deputy Inspector General, Central Industrial Security Force, Recruitment Training Centre, Arakkonam, Suraksha Campus Post, Vellore District. 5. The Senior Commandant, Central Industrial Security Force, Recruitment Training Centre, Arakkonam, Suraksha Campus Post, Vellore District. ... Respondents Page No.1 of 17  W.P.No.11774 of 2014 Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, calling for the records relating to the order passed by the 3rd Respondent dated 10.02.2014 in his order No.11014/T.S./Disc.Rev-Suresh/359/2014/769, confirming the order of the 4th Respondent dated 28.10.2013 in his order No.V-15014/CISF/RTC (A) Disc/Maj/S/2013/4634 confirming the order of the 5th Respondent dated 13.09.2013 in his final order No.V-15014/CISF/RTC (A) Disc/Maj/S/2013/4025 and quash the same and to direct the Respondents to pay all benefits. For Petitioner : Mr.R.Thiyagarajan For Respondents 1 to 3 : Mr.J.Madhana Gopal Rao, Sr. Central Govt. Standing Counsel For Respondents 4 & 5 : Mrs.R.Mageswari ORDER Petitioner has come up with this Writ Petition seeking to quash the order dated 10.02.2014 passed by the 3rd Respondent, confirming the order dated 28.10.2013 passed by the 4th Respondent, confirming the order dated 13.09.2013 passed by the 5th Respondent and for a direction to the Respondents to pay him all benefits. 2. According to the Petitioner, he joined as a Constable in Central Industrial Security Force (CISF) on 03.09.2006. He was transferred from MBR (KBR) CISF Unit, Jharkahand to NDRF Battalion, Arakkonam under the 5 th Respondent in the year 2012. He was issued Memorandum under Rule 36 of W.P.No.11774 of 2014 the CISF Rules by the 5th Respondent on 28.12.2012 with the following Article of Charge: “CISF No.066008247 Constable/GD Suresh (u/s) of CISF, RTC, Arakkonam was detailed to perform the duties of Dry Canteen Salesman from 03.11.2012 to 02.12.2012. On 06.11.2012, 13.11.2012 and 21.11.2012, he sold 01 pair of Anklet Khaki to Chest No.307 ASI/Exe (UT) Niraj Kumar, Chest No.317 ASI/Exe (UT) R.K. Rana and Chest No.314 ASI/Exe (UT) P.K.Upadhya respectively. Further on 26.11.2012, held sold 01 pair of Boot Ankle (Black) to Chest No.255 HC/Clk. (UT) Nitin Singh and Chest No.254 HC/Clk. (UT) Ravi Kumar by collecting more amount that its fixed rate. Further, he has not issued any cash receipt for the items sold to the trainees. Thus the act committed by CISF No.066008247 Constable/GD Suresh amounts to gross indiscipline and misconduct which is unbecoming of a member of a disciplined Force. Hence, the charge. 3. Denying the article of Charge framed against him, the Petitioner submitted a detailed written Statement of defence on 15.10.2013. Enquiry Officer was appointed, who, after enquiry, submitted his Report based on the materials available on record. After calling for explanation from the petitioner, on the basis of findings of the Enquiry Officer, the 5th Respondent imposed the punishment of compulsory retirement on the petitioner, vide order dated 13.09.2013. Aggrieved by the same, the Petitioner filed an Appeal before the W.P.No.11774 of 2014 4th Respondent on 20.09.2013 and the same was rejected on 28.10.2013. Challenging the order of rejection, the Petitioner filed a Revision before the 3rd Respondent on 10.02.2014, which was also rejected, the petitioner has come up with the present Writ Petition. 4. Learned counsel for the Petitioner submitted that, when the Petitioner took over charge of the Canteen, rate of each items was displayed in the rate Board outside the Canteen and the same was also displayed inside the Canteen, which could be verified from the Statements of P.Ws.2 and 3. In such circumstances, it was not possible to collect excess rate for the items being sold. It is his contention that, when the trainees have deposed that, they have discussed the issue of excess rate with their room mates, none of their room mates were called for the enquiry. He pointed out that, the billing machine of the canteen was out of order and that, only hand written Bills were prepared and handed over to the trainees. However, during the enquiry, the trainees were not able to produce any hand written bill issued by the petitioner. There being no substantive material to implicate the petitioner, the finding recorded by the enquiry officer is unsustainable and the punishment consequent upon the said finding is also impermissible and, therefore, prays for allowing the present writ petition. W.P.No.11774 of 2014 5. On the above contentions, this Court heard the learned counsel appearing for the respondents, who submitted that the materials available on record were analysed independently by the concerned authorities to come to the finding based on which punishment has been awarded. It is the further submission of the learned counsel for the respondents that the standard of proof required in a departmental proceedings is not like the proof that is required in a criminal trial. The appreciation of evidence is on the basis of preponderance of probabilities and not subject to strict enforcement of the provisions of the Evidence Act. Further, the learned counsel also laid emphasis on the ratio laid down by the Hon'ble Supreme Court with regard to the scope of judicial review in departmental proceedings and, therefore, prayed that this Court may not interfere with the order impugned herein. 6. In a recent decision in Director General of Police, RPF & Ors. - Vs – Rajendra Kumar Dubey (C.A. No.3820/2020 dated 25.11.20), the Hon'ble Supreme Court, adverting to the various decisions of the Apex Court relating to the interference by the High Court in exercise of its writ jurisdiction with respect to disciplinary proceedings, including the decision in Chaturvedi's case (supra), held as under :- “12.1 ...... It is well settled that the High Court must not act W.P.No.11774 of 2014 as an appellate authority, and re-appreciate the evidence led before the enquiry officer. We will advert to some of the decisions of this Court with respect to interference by the High Courts with findings in a departmental enquiry against a public servant. In State of Andhra Pradesh v S.Sree Rama Rao, a three judge bench of this Court held that the High Court under Article 226 of the Constitution is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is not the function of the High Court under its writ jurisdiction to review the evidence, and arrive at an independent finding on the evidence. The High Court may, however interfere where the departmental authority which has held the proceedings against the delinquent officer are inconsistent with the principles of natural justice, where the findings are based on no evidence, which may reasonably support the conclusion that the delinquent officer is guilty of the charge, or in violation of the statutory rules prescribing the mode of enquiry, or the authorities were actuated by some extraneous considerations and failed to reach a fair decision, or allowed themselves to be influenced by irrelevant considerations, or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. If however the enquiry is properly held, the departmental authority is the sole judge of facts, and if there is some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a writ petition. W.P.No.11774 of 2014 These principles were further reiterated in the State of Andhra Pradesh v Chitra Venkata Rao. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The court exercises the power not as an appellate court. The findings of fact reached by an inferior court or tribunal on the appreciation of evidence, are not re-opened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ court, but not an error of fact, however grave it may be. A writ can be issued if it is shown that in recording the finding of fact, the tribunal has erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence. A finding of fact recorded by the tribunal cannot be challenged on the ground that the material evidence adduced before the tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point, and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal. In subsequent decisions of this Court, including Union of India v. G. Ganayutham, Director General RPF v. Ch. Sai Babu, Chennai Metropolitan Water Supply and Sewerage Board v T.T. Murali, Union of India v. Manab Kumar Guha, these principles have been consistently followed. In a recent judgment delivered by this Court in the State of Rajasthan & Ors. v. Heem Singh this Court has summed up the law in following words : “33. In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when W.P.No.11774 of 2014 interference is permissible. The rule of restraint constricts the ambit of judicial review. This is for a valid reason. The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the disciplinary authority. Nor does the judge wear the hat of an employer. Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy – deference to the position of the disciplinary authority as a fact finding authority and autonomy of the employer in maintaining discipline and efficiency of the service. At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has W.P.No.11774 of 2014 recognized it for long years in allowing for the authority of the court to interfere when the finding or the penalty are disproportionate to the weight of the evidence or misconduct. Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to re-appreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the judge to be more appropriate. To do so would offend the first principle which has been outlined above. The ultimate guide is the exercise of robust common sense without which the judges’ craft is in vain.” In Union of India v. P. Gunasekaran, this Court held that the High Court in exercise of its power under Articles 226 and 227 of the Constitution of India shall not venture into re- appreciation of the evidence. The High Court would determine whether : (a) the enquiry is held by the competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some W.P.No.11774 of 2014 considerations which are extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. In paragraph 13 of the judgment, the Court held that : “13.Under Articles 226 / 227 of the Constitution of India, the High Court shall not : (i) re-appreciate the evidence; (ii) interfere with the conclusions in the enquiry, in the case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based; (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.” (Emphasis Supplied) W.P.No.11774 of 2014 7. From the ratio laid down above, it is explicitly clear that the Courts, in exercise of its power of judicial review, cannot extend the examination to the correctness of the act of the disciplinary authority, but only limit itself to the manner in which the decision has been arrived at by the authorities and whether the same is in accordance with law. This Court is to test only the correctness of the decision arrived at by the authorities on the basis of the evidence before it and not proceed with the case as if it is an appeal against the impugned order. 8. A perusal of the report of the enquiry officer reveals that a finding has been recorded that the petitioner had collected excess rate from three trainees viz. P.Ws.4, 5 and 6, who, in their Statements, have clearly deposed that, the petitioner had charged excess rates towards purchase of Khaki anklets on 06.11.2012, 13.11.2012 and 21.11.2012, respectively. The sales list for 06.11.2012 and 13.11.2012 produced by P.W.2 are indicative of the said fact. Though it is the contention of the petitioner that the billing machine was not in operation and manual billing was given and in the absence of any bill, produced by the above witnesses to prove the case against the petitioner, the case against the petitioner cannot stand the test of legal scrutiny does not merit acceptance for the simple reason that it is not required of the persons, who W.P.No.11774 of 2014 purchased the items to keep the manual bill preserved, as they would not be aware of any disciplinary proceedings that would be initiated by the respondents against the petitioner. But it is common knowledge that insofar as manual billing is concerned, always a duplicate copy is maintained by the biller for the goods sold, so as to have a cross check on the sales on the close of hours of business. Had the petitioner given manual bills, definitely there ought to be duplicate copy of the bills given, which the petitioner could have summoned to substantiate his case. Merely pleading that billing machine was not working and manual bills was given and the said bills have not been produced by the department to substantiate the charge against the petitioner is nothing but a feeble attempt on the part of the petitioner to clutch to the last bit of straw to vindicate himself from the charges. 9. On a holistic consideration of the materials available on record, this Court is of the considered opinion that the findings recorded in the enquiry are just and reasonable and this Court, under the guise of judicial review, cannot conduct a roving expedition as if the matter is in appeal before this Court. The petitioner having not produced any material to substantiate his case, the finding recorded by the enquiry officer, as accepted by the authorities below to fasten the guilt on the petitioner does not require any interference. W.P.No.11774 of 2014 10. Insofar as the punishment awarded to the petitioner is concerned for the delinquency, it has been the consistent view of the Courts that, it is always within the domain of the Appointing Authority to decide on the punishment to be imposed on the delinquent, which should be proportionate to the act of the delinquent. Only when the punishment is disproportionate and shocking the conscience, the Courts interfere with the same, in exercise of powers under Article 226 of the Constitution of India. In Prem Nath Bali – Vs - High Court of Delhi reported in (2015 (16) SCC 415), the Hon'ble Supreme Court has held as under : “20. It is a settled principle of law that once the charges levelled against the delinquent employee are proved then it is for the appointing authority to decide as to what punishment should be imposed on the delinquent employee as per the Rules. The appointing authority, keeping in view the nature and gravity of the charges, findings of the inquiry officer, entire service record of the delinquent employee and all relevant factors relating to the delinquent, exercised its discretion and then imposed the punishment as provided in the Rules. 21. Once such discretion is exercised by the appointing authority in inflicting the punishment (whether minor or major) then the courts are slow to interfere in the quantum of punishment and only in rare and appropriate case substitutes the punishment. Such power is exercised W.P.No.11774 of 2014 when the court finds that the delinquent employee is able to prove that the punishment inflicted on him is wholly unreasonable, arbitrary and disproportionate to the gravity of the proved charges thereby shocking the conscience of the court or when it is found to be in contravention of the Rules. The Court may, in such cases, remit the case to the appointing authority for imposing any other punishment as against what was originally awarded to the delinquent employee by the appointing authority as per the Rules or may substitute the punishment by itself instead of remitting to the appointing authority.” (Emphasis Supplied) 11. In the case on hand, a careful perusal of the entire records right relating to the enquiry as also the order passed by the disciplinary authority, as confirmed by the appellate and revisional authorities, it clearly transpires that the disciplinary authority has applied his mind to the enquiry report and all the other materials while imposing the punishment of compulsory retirement and on appeal and revision, the appellate and the revisional authorities have appreciated the materials independently and concurred with the view of the disciplinary authority. On an overall consideration of the materials, this Court is in consensus with the order passed by the disciplinary authority as confirmed by the appellate authority and affirmed by the reviewing authority and the punishment imposed on the petitioner is just and reasonable considering the nature of delinquency and no sympathy can flow from this Court for such an W.P.No.11774 of 2014 act. Therefore, the punishment imposed on the petitioner is in no way shocking the conscience of this Court or disproportionate to the delinquency and, therefore, this Court is not inclined to interfere with the same. 12. In fine, the Writ Petition stands dismissed, as devoid of merits. No costs. 27.11.2020 Index : Yes/No Speaking Order : Yes/No (vsi2/aeb) W.P.No.11774 of 2014 To: 1. The Secretary to Government, Union of India, Ministry of Home Affairs, New Delhi. 2. The Director General, Central Industrial Security Force, CGO Complex, Lodhi Road, New Delhi – 110 003. 3. The Inspector General, Central Industrial Security Force, Hyderabad. 4. The Deputy Inspector General, Central Industrial Security Force, Recruitment Training Centre, Arakkonam, Suraksha Campus Post, Vellore District. 5. The Senior Commandant, Central Industrial Security Force, Recruitment Training Centre, Arakkonam, Suraksha Campus Post, Vellore District. W.P.No.11774 of 2014 M.DHANDAPANI,J. vsi2 W.P.No.11774 of 2014 27.11.2020