Jasmeet Kaur Vs. State (NCT of Delhi) & Anr-12/12/ 2019

SUPREME COURT OF INDIA JUDGMENTS

It was evident from the conduct of the parties that they had abandoned their domicile of origin i.e. India, had set up their matrimonial home in the U.S. and raised their daughter in that environment. When the Petitioner – wife decided not to return to the U.S. in January, 2016 she acted in her self-interest, and not in the best interest of her children. The High Court held that the children have the right to be brought up by both parents as a family in the U.S. It is in the best interest of the children that the Petitioner – wife returns to the U.S. The High Court issued directions to the Respondent – husband to ensure that once the Petitioner – wife returns to the U.S., she is not faced with any adversity or hostility by the Respondent – husband, or the American legal system.

SUPREME COURT OF INDIA

Jasmeet Kaur Vs. State (NCT of Delhi) & Anr.

Special Leave Petition (Crl.) No. 4858-4859/ 2018

Jasmeet Kaur Vs. Navtej Singh

Special Leave Petition (Civil) No. 20022/ 2019

ACTS: U/S. 9 and 7,9, 11, 25 of the Guardians and Wards Act, 1890 & S. 6 (a) of the Hindu Minority and Guardianship Act, 1956

Indu Malhotra, J.

1. The present Special Leave Petitions arise out of matrimonial disputes between the parties. SLP (Crl.) No. 4858-4859/ 2018 has been filed by the Petitioner – wife to challenge the Orders dated 06.03.2018 and 21.05.2018 passed by the High Court in a Habeas Corpus Petition (Crl) No. 725 of 2017 filed by the Respondent – husband, seeking issuance of a writ of habeas corpus for production of the children, who have been illegally abducted by the Petitioner – wife from his custody in the USA. SLP (C.) No. 20022/2019 arises out of a Guardianship Petition filed U/S. 9 of the Guardians and Wards Act, 1890 (“GWA”) by the Petitioner – wife praying for permanent and sole custody of the minor daughter – Ishnoor now aged about 7 years, and minor son – Paramvir aged about 2 years. Since both SLPs arise out of common facts, they are being disposed of by this common judgment.

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Saeeda Khatoon Arshi Vs. State of Uttar Pradesh & Anr-10/12/2019

Summoning under Section 319 of the CrPC– The exercise of the discretion by the Additional Sessions Judge to summon the second respondent fulfilled the requirements of Section 319 and was consistent with the parameters laid down in the decisions of this Court noted earlier. The fact that a protest petition had not been filed by the appellant when the report was submitted under Section 173 did not render the court powerless to exercise its powers under Section 319 on the basis of the evidence which had emerged during the course of the trial.

SUPREME COURT OF INDIA

Saeeda Khatoon Arshi Vs. State of Uttar Pradesh & Anr.

[Criminal Appeal No. 1815 of 2019 arising out of Special Leave Petition (Crl.) No. 5326 of 2019]

ACT: Section 482 AND Section 319 of the CrPC of the Code of Criminal Procedure 1973

FROM: High Court of Judicature at Allahabad

Dr. Dhananjaya Y Chandrachud, J.

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State of Uttar Pradesh and Ors. Vs. Sudarshana Chatterjee-10/12/2019

Summoning of officers to the court-Having said so, we find that the High Court was not justified in passing orders from time to time to secure presence of the officers. The officers of the State discharge public functions and duties. The orders are generally presumed to be passed in good faith unless proved otherwise. The officers pass orders as a custodian of public money. Therefore, merely because an order has been passed, it does not warrant their personal presence. The summoning of officers to the court to attend proceedings, impinges upon the functioning of the officers and eventually it is the public at large who suffer on account of their absence from the duties assigned to them. The practice of summoning officers to court is not proper and does not serve the purpose of administration of justice in view of the separation of powers of the Executive and the Judiciary.

SUPREME COURT OF INDIA

State of Uttar Pradesh and Ors. Vs. Sudarshana Chatterjee

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Union of India & Ors. Vs. Dafadar Kartar Singh & Anr- 9/12/2019

COURT-MARTIAL: the judgment of the Tribunal is set aside and the order passed in Summary Court Martial is restored. The sentence of imprisonment is however modified to the period already undergone. The other penalties of dismissal from service and reduction to ranks are restored.

SUPREME COURT OF INDIA

Union of India & Ors. Vs. Dafadar Kartar Singh & Anr.

[Criminal Appellate Jurisdiction Criminal Appeal Nos. 3-4 of 2015]

L. Nageswara Rao, J.

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ONGC LTD. & ORS. Vs CONSUMER EDUCATION RESEARCH SOCIETY & ORS- 09/12/2019

Consumer- whether any amount is being paid by the employees for contribution to the services rendered by the Trust, it is apparent that the service, if any, is being rendered by the Trust and not by the ONGC. Therefore, we have no hesitation in coming to the conclusion that there is no relationship of consumer and service provider between the claimants and the ONGC.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 9257 OF 2019

(Arising out of SLP (C) No(s).14941 of 2014)

CHAIRMAN­CUM­MANAGING DIRECTOR

ONGC LTD. & ORS. …APPELLANT(S)

Versus

CONSUMER EDUCATION RESEARCH

SOCIETY & ORS. …RESPONDENT(S)

WITH

CIVIL APPEAL NOS. 9258 OF 2019

(Arising out of SLP (C) Nos. 26660 of 2014)

CIVIL APPEAL NOS. 9259 OF 2019

(Arising out of SLP (C) No. 26659 of 2014)

CIVIL APPEAL NOS. 9260 OF 2019

(Arising out of SLP (C) No. 26662 of 2014)

CIVIL APPEAL NOS. 9261 OF 2019

(Arising out of SLP (C) No. 26655 of 2014)

CIVIL APPEAL NOS. 9262 OF 2019

(Arising out of SLP (C) No. 26657 of 2014)

CIVIL APPEAL NOS. 9263 OF 2019

(Arising out of SLP (C) No. 26661 of 2014)

CIVIL APPEAL NOS. 9264 OF 2019

(Arising out of SLP (C) No. 26663 of 2014)

JUDGMENT

Deepak Gupta, J.

Leave granted.

2. All these appeals are being disposed of by a common judgment since the issue involved is common in all the cases.

3. At the outset, we may note that Shri Krishnan Venugopal, learned senior counsel appearing for the appellants submits that without prejudice to the rights of the appellants to challenge the impugned orders of the National Consumer Disputes Redressal Commission as well as the Gujarat State Consumer Disputes Redressal Commission and the District Forum, the appellants shall pay the amount as directed in the impugned orders. This has been done because the amounts involved are small, the appellants had retired a long time back and they should not be forced to go into the second round of litigation.

4. The main issue involved is whether there is relationship of consumer and service provider existing between the private respondents (claimants) and the appellants.

5. The undisputed facts are that all the claimants were employees of the Oil and Natural Gas Commission (for short ‘the ONGC’). A Self Contributory, Post Retirement and Death in Service Benefits Scheme, 1991 (for short ‘the Scheme’) was introduced in the ONGC after obtaining permission of the Government of India and the relevant portion of the letter dated 18.09.1991 granting permission reads as follows:­

“(i) Contribution to the fund to be established from the employee of the ONGC would be in cash, with a token contribution of Rs.100 per annum by ONGC.”

The Scheme has also been annexed and the relevant portion of the Scheme reads as follows:­

“1(c) Membership

(i) xxx xxx xxx

(ii) The Scheme shall be optional to the existing executives in regular service of the Commission on the effective date of the Scheme 01 04 1990 However, t will be compulsory for executives joining regular service in the Commission as new entrant on or after the effective date of the Scheme option once exercise shall be final and irrevocable

xxx xxx xxx

2 Contribution

2.1 The contribution to be make by the member­ employee shall be calculate his salary and the rate will be as given hereunder depending on his age on the effective of the Scheme for employees on the rolls ONGC as on 01.04.1990 and on the date Joining ONGC for new entrants. The rate of contribution fixed at the time of entry will remain constant. The following rates of the contribution are payable in the various age group:

(i) Below 25 years ­0.5% of salary

(ii) 25 and upto 35 years ­0.75% of Salary
(iii) above 30 and up to 35 years ­1% of salary
(iv) above 35 and up to 40 years ­2% of salary
(v) Above 40 and up to 45 years ­3% of salary
(vi) Above 45 and up to 48 years ­4.5% of salary
(vii) Above 48 and up to 50 years ­4.5% of salary
Above 50 and up to 58 years ­5% of salary
xxx xxx xxx

5. MANAGING THE SCHEME

(a) The Scheme shall be run by a Trust consisting of trustees to be nominated by the Chairman ONGC and representative as may nominated on the board by CWC of ASTO. The Trust would make investment plan of the fund as per pattern of Rule 67 (2) of Income Tax Rule 1961 and would purchase annuity from LIC for the beneficiaries

under the Scheme.

6. Scheme is based on voluntary contribution by the member employees. No contribution will be made by ONGC towards this Scheme except Rs.100 p.a. No. other financial liability on account of this Scheme will devolve on ONGC or the Govt. of India.”

It is not necessary to deal with other facts. The case of the claimants was that due to delay in sending their claims to the LIC, they suffered a loss. This averment is denied by the appellants but, in our view, that is not very relevant. The Consumer Fora held that the employees were consumers of the ONGC and therefore passed orders awarding various amounts and costs in favour of the claimants and hence the ONGC is liable to pay the same.

6. Shri Venugopal has raised various pleas before us. The first is that in terms of the definition of consumer in the Consumer Protection Act, 1986 (for short ‘the Act’), the first essential ingredient is payment of consideration for availing services. The second contention is that rendering of service free of charge under a contract of personal service is not included in the definition of service under the Act. We may refer to Section 2(d) of the Act, which reads as follows:­

“(d) “consumer” means any person who,—

(i) xxx xxx xxx

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;”

We may also refer to Section 2(o) of the Act, which reads as follows:­

“(o) “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”

Shri Venugopal has relied upon the judgment of this Court in the case of Jagmittar Sain Bhagat & Ors. vs. Director, Health Services, Haryana & Ors.1 in this regard. On the other hand, learned counsel for the respondents has placed reliance on the judgment of this Court in Regional Provident Fund Commissioner v. Shiv Kumar Joshi2 and Regional Provident Fund Commissioner v. Bhavani3.


1 2013(10) SCC 136

2 2000(1) SCC 98

3 (2008) 7 SCC 111


7. In our opinion, it is not necessary to answer all the issues raised by Shri Venugopal since, in our opinion, there is virtually no privity of contract for providing service between the ONGC and the claimants. From a perusal of the letter dated 18.09.1991 and the Scheme, relevant portion of which has been quoted above, it is apparent that contributors to the Scheme were the employees of ONGC. Whereas the employer was only making a token contribution of Rs.100 per annum, the Scheme was also voluntary and optional for the employees who were in service from the effective date i.e. 01.04.1990. It is not disputed that all the claimants were in service before the effective date. The Scheme envisages that every employee shall contribute to the fund at rates specified therein. The younger the employee, the percentage deducted from his salary is less and this rises progressively as the age increases. It has obviously been done to ensure that the contribution of the employee is equal i.e. those who have less years of remaining service will contribute at a higher rate and those who have more years of remaining service will contribute at a lower rate. The most important aspect is that the Scheme is managed and run by a Trust and not by the ONGC. The trustees of the Trust are nominated by the Chairman of the ONGC and representatives may be nominated to the Board of Trustees by the Central Working Committee (CWC) of Association of Scientific and Technical Officers. We have been informed at the Bar that 7 trustees are nominated by the Chairman of the ONGC and 6 by the CWC. Be that as it may, it is the Trust which manages the fund. Therefore, without going into the question as to whether any amount is being paid by the employees for contribution to the services rendered by the Trust, it is apparent that the service, if any, is being rendered by the Trust and not by the ONGC. Therefore, we have no hesitation in coming to the conclusion that there is no relationship of consumer and service provider between the claimants and the ONGC. We make it clear that we have not gone into the other questions since, in view of the aforesaid decision, it is not necessary to decide the other questions raised by Shri Venugopal.

8. In view of the above discussion, we partly allow the appeals and set aside the orders of the National Consumer Disputes Redressal Commission and the State Consumer Disputes Redressal Commission in so far as it held that there is a relationship of consumer and service provider between the claimants and the ONGC. We also set aside the costs imposed by the National Consumer Disputes Redressal Commission. However, in view of the statement made by Shri Venugopal, recorded in the opening portion of this judgment, we direct the ONGC to pay the amounts payable (other than the costs) under the orders impugned to the claimants within 8 weeks from today.

9. Pending application(s), if any, stand(s) disposed of.

J. (S. Abdul Nazeer)

J. (Deepak Gupta)

 

New Delhi

December 09, 2019


THE STATE OF BIHAR & ORS Vs PHULPARI KUMARI- 06/12/2019

SUPREME COURT OF INDIA JUDGMENTS

Departmental Inquiry : It is settled law that interference with the orders passed pursuant to a departmental inquiry can be only in case of ‘no evidence’. Sufficiency of evidence is not within the realm of judicial review. The standard of proof as required in a criminal trial is not the same in a departmental inquiry. Strict rules of evidence are to be followed by the criminal Court where the guilt of the accused has to be proved beyond reasonable doubt. On the other hand, preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge. The High Court ought not to have interfered with the order of dismissal of the Respondent by re-examining the evidence and taking a view different from that of the disciplinary authority which was based on the findings of the Inquiry Officer.

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 8782 of 2019

(Arising out of SLP (C) No.21197 of 2019)

THE STATE OF BIHAR & ORS. …. Appellant(s)

Versus

PHULPARI KUMARI …. Respondent (s)

JUDGMENT

L. NAGESWARA RAO, J.

1. The State of Bihar has filed the above Appeal questioning the judgment of the High Court of Judicature at Patna by which the order of dismissal of the Respondent dated 10.12.2014 was set aside.

2. The Respondent was appointed as a Child Development Officer on 29.06.2011. Sh. Jitendra Rajak filed a complaint against the Respondent to the Vigilance Bureau of Investigation, Patna alleging demand of illegal gratification. The Vigilance Bureau conducted a raid and the Respondent was caught red-handed while accepting an amount of Rs.40,000/-. A First Information Report (FIR) was registered against the Respondent on 17.08.2013. Simultaneously, disciplinary proceedings were commenced against the Respondent on 12.11.2013 and she was placed under suspension. An inquiry was held in which the following charges were framed:

First Charge:

“You demanded the gratification amount for the selection/appointment letter to the selected candidate after the selection of the general meeting on the vacant post of Anganwari Sevika in Anganwari Centre No. 27 (Ward No.03 Panchayat Mahuli) of the Child Development Project, Patna Rural Patna.”

Second Charge:

Irregular operation of Anganwari Centers and the Centre found to be closed.

The Agnagnwari Centre was found to be closed in the preschool education at Anganwari Centre No. 63 of the Child Development Project, Patna Sadar – 1 on 13.10.2011. Anganwari Centre was running in the house made of straws. Sevika came late. Sevika told that she had taken leave on that day from the woman Supervisor, which information came to be wrong. The Helper was found to be absent. Kitchen was found to be closed since 02.10.2011. Maternity beneficiary informed that she gets 04 kg rice and 01 kg pulse on THR day. The operation of the Centre was found to be unsatisfactory.

Third Charge

As mentioned in the supplementary form attached to the Resolution No.1218 dated 04.03.2014 about registering FIR by vigilance PS case No.49.

3. The findings of the Inquiry Officer are that a general meeting was convened on 24.06.2013 to decide the vacancies for the position of Child Development Officer (Sevika) in Anganwari Centre No.27 (Ward No.03 Panchayat Mahuli) of the Child Development Project, Patna. A resolution was passed to select Smt. Suman Kumar, the wife of the complainant. The Respondent was also present in the general meeting. Smt. Suman obtained 62.4 per cent marks. As per the complaint, the Respondent demanded a sum of Rs.1,50,000/- for the appointment of the complainant’s wife, Smt. Suman Kumar. The amount was then reduced to Rs.50,000/-. The complainant approached the Vigilance Bureau and a raid was conducted on 17.08.2013 by laying a trap. As per the directions of the Vigilance authorities, the complainant approached the Respondent who was standing in the verandah of her house. The Respondent received the money and put the amount on the chair and began to shut the grill of her house, when she saw other persons of the raiding party. The fingers of both the hands of the Respondent were washed in sodium carbonate solution and the color of the solution turned pink. The Inquiry Officer concluded that there is sufficient evidence to hold that the Respondent is guilty of the first charge framed against her. The charge of demanding and accepting illegal gratification was proved against her. The other charges were also needed to be proved.

4. The Respondent was dismissed from service by an order dated 10.12.2014. She challenged the order of dismissal by filing a Writ Petition in the High Court, which was allowed by a judgment dated 12.12.2017. A learned Single Judge of the High Court disbelieved the version of the complainant as neither the complainant nor his wife were examined in the disciplinary proceedings. The learned Single Judge concluded that the charge of demand and acceptance of the illegal gratification by the Respondent was not proved.

5. The Division Bench of the High Court affirmed the judgment of the learned Single Judge in the Writ Petition and dismissed the Appeal filed by the Appellant. The Division Bench proceeded to examine the evidence and held that the charge of demand and acceptance of illegal gratification was not proved. The submission of the Respondent that she was falsely implicated in a trap case was accepted by the Division Bench.

6. The criminal trial against the Respondent is still pending consideration by a competent criminal Court. The order of dismissal from service of the Respondent was pursuant to a departmental inquiry held against her. The Inquiry Officer examined the evidence and concluded that the charge of demand and acceptance of illegal gratification by the Respondent was proved. The learned Single Judge and the Division Bench of the High Court committed an error in reappreciating the evidence and coming to a conclusion that the evidence on record was not sufficient to point to the guilt of the Respondent. It is settled law that interference with the orders passed pursuant to a departmental inquiry can be only in case of ‘no evidence’. Sufficiency of evidence is not within the realm of judicial review. The standard of proof as required in a criminal trial is not the same in a departmental inquiry. Strict rules of evidence are to be followed by the criminal Court where the guilt of the accused has to be proved beyond reasonable doubt. On the other hand, preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge. The High Court ought not to have interfered with the order of dismissal of the Respondent by re-examining the evidence and taking a view different from that of the disciplinary authority which was based on the findings of the Inquiry Officer.

7. In view of the above, the judgment of the High Court is set aside and the order of dismissal of the Respondent is upheld. The Appeal is accordingly allowed.

J [L. NAGESWARA RAO]

J [HEMANT GUPTA]

New Delhi,

December 06, 2019.


Station House Officer CBI/ACB/Bangalore vs. B.A. Srinivasan – 05/12/2019

SUPREME COURT OF INDIA JUDGMENTS

Sanction u/s Section 197 CrPC when not required– From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate Government under Section 197 CrPC, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate Government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 CrPC was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1837 OF 2019

(Arising out of Special Leave Petition (Crl.) No.6106 of 2019)

STATION HOUSE OFFICER, CBI/ACB/BANGALORE …Appellant

VERSUS

B.A. SRINIVASAN AND ANR. …Respondents

JUDGMENT

Uday Umesh Lalit, J.

1. Leave granted.

2. This Appeal challenges the judgment and order dated 08.08.2018 passed by the High Court1 allowing Criminal Revision Petition No.834 of 2015 preferred by the Respondent No. 1; and thereby discharging the Respondent No.1 of the offences punishable under Sections 419, 420, 467, 468, 471 read with Section 120B of the Indian Penal Code, 1860 (‘IPC’, for


1 The High Court of Karnataka at Bangalore short) and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (‘the Act’, for short).


3. The Respondent No. 1 retired on 31.10.2012 as Assistant General Manager, Vijaya Bank. On 28.10.2013, FIR being RC 12(A)/2013 was registered pursuant to complaint given by the General Manager, Vijaya Bank, Head Office, Bangalore against the Respondent No.1 in respect of the offences mentioned hereinabove. After completion of investigation, charge-sheet was filed on 31.10.2014 against the Respondent No.1 and other accused in respect of said offences. It was alleged inter alia :-

“3. That Shri B.A. Srinivasan (A-1) while working as Assistant General Manager (AGM) and Branch Head, Vijaya Bank, Mayo Hall Branch, Bangalore during the period from 11.01.2010 to 20.10.2012 entered into a criminal conspiracy with Shri B.Lakshman (A-3), Smt. Shanta Gowda (A-4) and Shri S.V. Isloor (A-5) to cheat and defraud Vijaya Bank, Mayohall Branch, Bangalore and to extend undue financial accommodation to M/s. Nikhara Electronics and Allied Technics (A-2) on the basis of fake and fabricated documents and in furtherance of the said criminal conspiracy, Shri B.A. Srinivasan (A-1) sanctioned and disbursed Rs.200 lakhs of Term Loan and Rs.100 lakhs of Cash Credit Hypothecation (Working Capital) in favour of M/s. Nikhara Electronics and Allied Technics (A- 2) without proper due diligence and in gross violation of all extant rules and regulations of Vijaya Bank, and hence, facilitated A-3 and A-4 to divert the loan-funds against the terms and conditions, thereby causing wrongful loss to Vijaya Bank and corresponding gains to others.

… … …

8. That Shri B. Lakshnian (A-3) and his wife Smt. Shanta Gowda (A-4) fraudulently created an agreement dated 10.06.2011 on the photocopy of e-stamp paper having franking No.57724 dated 8. 06.2011 and submitted a copy of the same to Vijaya Bank to support their dishonest claim of taking over M/s. Nikhara Electronics & Allied Technics, proprietary concern by making a payment of Rs.1.00 Crore as goodwill to Shri Venkataramana Bhat (A-6). Shri B.A. Srinivasan (A-1) dishonestly accepted the photocopy of the agreement intentionally omitting to ascertain its genuineness or authenticity. It is revealed that the above agreement was fraudulently created on the photocopy of e-stamp paper franked vide 57724 dated 08.06.2011 and the original stamp paper remained blank was seized from the office premises of Shri S.V. Isloor (A-5). It is thus established the fraudulent intentions of all the accused persons to create forged documents as and when required and to misrepresent that the proprietary unit was taken over by A-3 and A-4 from A-6.

… … …

16. That Shri B.A. Srinivasan (A-1) in furtherance of criminal conspiracy with the other accused dishonestly, by abusing his official position as AGM & Branch Head of Vijaya Bank, Mayohall Branch fraudulently considered the loan application, processed loan proposals in gross violation of the rules and regulations of Vijaya Bank in this regard in order to favour the accused persons. He intentionally accepted the inflated financial statements submitted by A-3 and A-4 even though they were not audited and considered them for working out the credit assessment of the borrower firm i.e., M/s. Nikhara Electronics and Allied Technics (A-2). He purposely did not exercise due diligence to analyse the financial statements submitted by the borrower firm which contained several inconsistencies. He also did not conduct the mandatory pre-sanction verification at the address of the borrower firm to ascertain whether any business activities such as manufacturing of electric equipment etc., were going on as claimed in the loan application. The criminal acts of Shri B.A. Srinivasan (A-1) facilitated the accused private persons to misrepresent the existence of M/s. Nikhara Electronics and Allied Technics (A-2), which actually existed only on the forged partnership deed dated 10.06.2011, created by A-3 and A-4.

17. That Shri B.A. Srinivasan (A-1) prepared the Credit Process Note himself and obtained the signatures of Shri Jyoti Prakash Shetty, the then Asst. Manager in the column of appraising official. Shri Nabeel Ahmed, the then Probationary Manager was also made to put his initials in the process note, merely as a token of his training. It is revealed that A-1 prepared the proposals for an aggregate amount of Rs.300 lakh (term loan of Rs.200 lakhs and cash credit of Rs.100 lakhs) as against the request for Rs.350 lakhs (term Loan of Rs.200 lakhs; working capital of Rs.130 lakhs and Bank Guarantee of Rs.20
lakhs) without there being any clarification/justification for such reduction in the requirements of the applicant.

18. That Shri B. Lakshman (A-3) fraudulently submitted a forged Letter No. REFREF: SP: QT: 155: 2011 dated 10.08.2011 purportedly signed as JAK, Partners, M/s. V-Tech Engineering Enterprises along with Quotations/Proforma Invoices for an aggregate amount of Rs.2,69,60,496/- which were purportedly issued by M/s.V-Tech Engineering Enterprises.

… … …

33. That Shri B.A. Srinivasan (A-1) was also fully aware that property offered as collateral security was in occupation of third parties (tenants). However, A-1 dishonestly and fraudulently chose to ignore this important fact, in spite of his field inspection and also the observations made by the valuer in his Valuation Report. Concurrent Auditor of the Bank also pointed out this fact in her report adding that the tenants in occupation of collateral security would adversely affect the interests of the bank, in the event of necessity, to enforce sale of the property to recover its dues. It is also revealed that tenants were paying rents to Shri Nagesh s/o late Krishnappa, who sold the property to Shri Nilakanth Sanikop, from whom A-3 purchased the property. A-1 intentionally omitted to make any endeavour to ascertain the nature of rights of the tenants, despite the fact that in future it would affect the enforceability of the mortgaged property by the bank.

34. That Shri B.A. Srinivasan (A-1) also violated the extant rules of the bank by not obtaining the Legal Audit Report, on the mortgaged property, prior to processing and sanctioning of loans to M/s. Nikhara Electronics and Allied Tekchnics. Shri B.A. Srinivasan (A-1) obtained this report only on 19. 04.2012, more than six months after the loan was sanctioned and disbursed.

35. By the above said acts, Shri B.A. Srinivasan (A-1), the then AGM, Vijaya Bank, Mayo Hall Branch, Bangalore; M/s. Nikhara Electronics and Allied Technics (A-2); Shri B. Lakshman @ Lakshman Reddy (A-3); Smt. Shanta Gowda (A-4); Shri S.V.Isloor (A-5) and Shri Venkataramana Bhat (A-6) committed the offences of cheating and personating as proprietor, M/s. V-Tech Engineering Enterprises, committed forgery of documents such as Quotations, Cash/Credit Bills, vouchers etc. for the purpose of cheating, using the forged documents as genuine in pursuance of the criminal conspiracy among themselves, thereby causing wrongful loss to the bank and corresponding gains to themselves and others. Investigation also establishes that Shri B.A. Srinivasan (A-1) committed the offence of criminal misconduct by gross abuse of his official position as the then AGM of Vijaya Bank, Mayo Hall Branch, Bangalore, and caused accrual of pecuniary advantage to the accused private persons, attracting the penal provisions of the Prevention of Corruption Act, 1988. That, the above acts of Shri B.A. Srinivasan (A-1), M/s. Nikhara Electronics and Allied Technics (A-2), Shri B. Lakshman (A-3), Smt. Shanta Gowda (A-4), Shri Shripad Vishwanath Isloor (A-5) and Shri Venkataramana Bhat (A-6) constitute offences punishable u/s 120-B r/w 420, 419, 468 & 471 IPC and 13(2) r/2 13(1)(d) of the Prevention of Corruption Act, 1988.

36. That Shri B.A. Srinivasan (A-1) is retired from the services of Vijaya Bank on 31.10.2012; hence sanction for prosecution u/s 19 of the PC Act, is not required.”

4. After the cognizance was taken by the concerned court, an application was moved by the Respondent No.1 seeking discharge in terms of Sections 227 and 239 of the Code of Criminal Procedure, 1973 (‘the Code’, for short). This application was rejected by the Additional City Civil and Sessions Judge and Principal Special Judge for CBI cases, Bangalore, vide order dated 13.04.2015. It was observed:-

“…As can be seen from the charge sheet and statement of witnesses, accused No.1 has deliberately violated the rules and regulations and bank norms of the bank while processing the loan application of accused No.2 firm and thereby he had entered into criminal conspiracy with accused Nos.3 to 6 and accepted the fabricated and forged vouchers, invoices inflated financial statements in order to facilitate accused Nos.3 and 4 to avail the term loan of Rs. Two Crores cash credit and Rs. One Crore. The said term loan and cash credit of Rs.Three Crores were misutilised for the purpose other than for which the loan was sanctioned. Thus, all materials clearly go to show that there was dishonest intention on the part of the accused No.1 from the inception itself. The said circumstances and materials collected by the Investigating Officer clearly reveal that accused No.1 had entered into criminal conspiracy with accused Nos. 3 to 6 and he had accepted the forged, fabricated invoices and inflated financial statement knowingly fully well that they were forged. …

… … …

Though accused No.1 was public servant, it is alleged that he has retired from the service from Vijaya Bank on 31.10.2013. Therefore, sanction as required u/s 19 of PC Act, 1988 to prosecute accused No.1 is not required. The discharge application filed by accused No.1 is devoid of merits and on the contrary, there are sufficient materials against accused No.1 for framing charge for the offences punishable u/s 120B, 420, 471 IPC and u/s. 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988….”

5. The Respondent No.1, being aggrieved, preferred Criminal Revision Petition No. 834 of 2015 in the High Court, which was allowed by the judgment and order presently under appeal. The High Court, thus set aside the order dated 13.04.2015 as regards the Respondent No.1 and discharged him of the offences with which he was sought to be charged.

6. While dealing with the submission that the allegations against the Respondent No.1 could, at best, be administrative lapses, the High Court observed:-

“10… …These aspects of administrative lapses, it is to be stated, cannot be considered at the time of framing charge. Unless the witnesses are subjected to cross-examination, no finding can be given whether the omission in following the procedure amounts to administrative lapse or was deliberate. Therefore, this point of argument cannot be a ground for discharging accused No.1. Therefore, given a conclusion, it can be opined that the materials on record are sufficient to frame a charge against accused no.1, the findings of the Special Court in this regard do not indicate non-application of mind or, any infirmity or illegality in coming to an opinion that accused no.1 cannot be discharged on this ground. This finding needs to be sustained.

On the issue of sanction, the High Court, however, stated:-

“11. However, another finding regarding sanction cannot be sustained. The special court has held that the sanction is not necessary as accused no.1 has retired by the time charge-sheet was filed. But the argument of petitioner’s counsel is that sanction in accordance with Section 197 CrPC is necessary. Before adverting to this point, I think it necessary to opine that the offences triable by Special Judge related to time when an accused was in service as a public servant. Sanction under Section 19 of Prevention of Corruption Act is necessary to see that a public servant is not entangled in a frivolous and false case. Sanction insulates a public servant from a false or vexatious or frivolous prosecution. Therefore, a protection available to a public servant while in service should also be available after his retirement. It cannot be forgotten that even after retirement, he is prosecuted for offences under prevention of Corruption Act. Indeed, the retirement removes one from the garb of a public servant; but justice requires that same protection should be available even after one’s retirement. …”

(underlined by us)

Thereafter, while dealing with submissions based on the decisions of this Court in Kalicharan Mahapatra vs. State of Orissa2, R.


2 AIR 1998 SC 2595


Balakrishna Pillai vs. State of Kerala3, State of Punjab vs. Labh Singh4 and N.K. Ganguly vs. CBI, New Delhi5, the matter was considered as under:-

“The learned standing counsel for CBI submitted insofar as offences under Indian Penal Code are concerned, they cannot be said to have been committed in discharge of official duty; sanction therefore is not necessary even under Section 197 CrPC. If the allegations levelled against the first accused are seen, and particularly with reference to conspiracy, it is to be stated at the stage of framing charge, it is difficult to discern whether offences can be connected to official capacity or not. Thorough trial requires to be held. If facts in N.K. Ganguly (supra) are seen, there also the accused were sought to be prosecuted for the offences under Prevention of Corruption Act in addition to some of the offences under Indian Penal Code. Thus seen, the first accused should get the benefit of discharge for absence of sanction under Section 197 of CrPC. …”

Thus, it was concluded that the material on record was sufficient to frame a charge against Respondent No.1. The benefit of discharge was however granted on the issue of absence of sanction under Section 197 of the Code.
7. In this appeal challenging the view taken by the High Court, we heard Mrs. Sonia Mathur, learned Senior Advocate, in support of the appeal and Mrs. V. Mohana, learned Senior Advocate for the Respondent No.1.


3 (1996) 1 SCC 478

4 (2014) 16 SCC 807

5 (2016) 2 SCC 143


8. Mrs. Sonia Mathur, learned Senior Advocate, submitted that the protection under Section 19 of the Act is available to a public servant only till he is in the employment and no sanction is necessary after the public servant has demitted office or has retired from service. As regards sanction under Section 197 of the Code, it was submitted that for an action to come within the purview of Section 197 of the Code, it must be integrally connected with the official duties or functions of a public servant and that if the office was merely used as a cloak to indulge in activities which result in unlawful gain to the beneficiaries, the protection under said Section 197 would not be available.

It was also submitted that the decision of this Court in N.K. Ganguly vs. Central Bureau of Investigation, New Delhi5 was in the context of the peculiar facts involved therein.

On the other hand, Mrs. V. Mohana, learned Senior Advocate, submitted that the Respondent No. 1 retired in the year 2012; that the allegations levelled against him would, at best, amount to administrative lapses on his part and there was certainly no criminal intent so as to attract the charges under the relevant sections; and that this Court may not in its jurisdiction under Article 136(1) of the Constitution interfere in the matter.

9. In S.A. Venkataraman vs. The State6 while dealing with the requirement of sanction under the pari materia provisions of the Prevention of Corruption Act, 1947, it was laid down that the protection under the concerned provisions would not be available to a public servant after he had demitted his office or retired from service. It was stated:-

“… …if an offence under s. 161 of the Indian Penal Code was committed by a public servant, but, at the time a court was asked to take cognizance of the offence, that person had ceased to be a public servant one of the two requirements to make s. 6 of the Act applicable would be lacking and a previous sanction would be unnecessary. The words in s. 6(1) of the Act are clear enough and they must be given effect to. There is nothing in the words used in s. 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed. … …”

The law so declared by this Court has consistently been followed. For example, in Labh Singh4 it was observed:-

“9. In the present case the public servants in question had retired on 13-12-1999 and 30-4-2000. The sanction to prosecute them was rejected subsequent to


6 [1958] SCR 1037


their retirement i.e. first on 13-9-2000 and later on 24-9-2003. The public servants having retired from service there was no occasion to consider grant of sanction under Section 19 of the PC Act. The law on the point is quite clear that sanction to prosecute the public servant for the offences under the PC Act is not required if the public servant had already retired on the date of cognizance by the court. In S.A. Venkataraman v. State6 while construing Section 6(1) of the Prevention of Corruption Act, 1947 which provision is in pari materia with Section 19(1) of the PC Act, this Court held that no sanction was necessary in the case of a person who had ceased to be the public servant at the time the court was asked to take cognizance. The view taken in S.A. Venkataraman6 was adopted by this Court in C.R. Bansi v. State of Maharashtra7 and in Kalicharan Mahapatra v. State of Orissa2 and by the Constitution Bench of this Court in K. Veeraswami v. Union of India8. The High Court was not therefore justified in setting aside the order passed by the Special Judge insofar as charge under the PC Act was concerned.”

10. Consequently, there was no occasion or reason to entertain any application seeking discharge in respect of offences punishable under the Act, on the ground of absence of any sanction under Section 19 of the Act. The High Court was also not justified in observing ‘that the protection available to a public servant while in service, should also be available after his retirement’. That statement is completely inconsistent with the law laid down by this Court in connection with requirement of sanction under Section 19 of the Act.


7 (1970) 3 SCC 537

8 (1991) 3 SCC 655


11. Again, it has consistently been laid down that the protection under Section 197 of the Code is available to the public servants when an offence is said to have been committed ‘while acting or purporting to act in discharge of their official duty’, but where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected. The statements of law in some of the earlier decisions were culled out by this Court in Inspector of Police and another vs. Battenapatla Venkata Ratnam and another9 as under:-

“7. No doubt, while the respondents indulged in the alleged criminal conduct, they had been working as public servants. The question is not whether they were in service or on duty or not but whether the alleged offences have been committed by them “while acting or purporting to act in discharge of their official duty”. That question is no more res integra. In Shambhoo Nath Misra v. State of U.P.10, at para 5, this Court held that: (SCC p. 328)

“5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund, etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds, etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund, etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the


9 (2015)13 SCC 87

10 (1997) 5 SCC 326


same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained.”

8. In Parkash Singh Badal v. State of Punjab11, at para 20 this Court held that: (SCC pp. 22-23)

“20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant’s own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.”

and thereafter, at para 38, it was further held that: (Parkash Singh Badal case11, SCC p. 32)

“38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.”

9. In a recent decision in Rajib Ranjan v. R. Vijaykumar12 at para 18, this Court has taken the view that: (SCC p. 521)

“18. … even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct,


11 (2007) 1 SCC 1
12 (2015) 1 SCC 513


such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted.”

(emphasis already supplied)

12. It has also been observed by this Court that, at times, the issue whether the alleged act is intricately connected with the discharge of official functions and whether the matter would come within the expression ‘while acting or purporting to act in discharge of their official duty’, would get crystalized only after evidence is led and the issue of sanction can be agitated at a later stage as well. In P.K. Pradhan vs. State of Sikkim represented by the Central Bureau of Investigation13, this Court stated:-

“15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence


13 (2001) 6 SCC 704


establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.”

(underlined by us)

13. The offences involved in the case of N.K. Ganguly5 were under Section 120-B IPC read with Sections 13(1)(d) and 13(2) of the Act i.e. relating to conspiracy to commit offences punishable under the provisions of the Act. Secondly, the conclusion was drawn in the context of the facts available therein which is evident from the following: –

“35. From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate Government under Section 197 CrPC, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate Government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 CrPC was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence.”

(underlined by us)

14. We now turn to the cases relied upon by Mrs. V. Mohana, learned Senior Advocate. In Rishipal Singh vs. State of Uttar Pradesh and another14 this Court observed:-
“13. What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the court can exercise the power under Section 482 CrPC. While exercising the power under the provision, the courts have to only look at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial court and dwell into the disputed questions of fact.”


14 (2014) 7 SCC 215


This decision thus dealt with the parameters which ought to be considered while entertaining an application under Section 482 of the Code and is not a decision directly on the point. The decision in Anil Kumar Bose vs. State of Bihar15 pertained to a case which had arisen after a full fledged trial, where, as regards offence punishable under Section 420/34 IPC, it was observed that the essential ingredient being mens rea, mere failure on part of the concerned employees to perform their duties or to observe the rules/procedure may be administrative lapses but could not be said to be enough to attract the penal provisions under Section 420 IPC. The matter was considered after the facts had crystalized in the form of evidence before the court and as such, this decision is of no relevance for the present purposes.

15. Having considered the matter in entirety, in our view, the High Court clearly erred in allowing Criminal Revision Petition and accepting the challenge raised by the Respondent No.1 on the issue of sanction. We, thus, allow this Appeal, set aside the view taken by the High Court, restore the order passed by the Trial Court and dismiss the application seeking discharge preferred by the Respondent No.1.


15 (1974) 4 SCC 616


16. It is made clear that we have adverted to the facts and the allegations only for the purpose of considering the basic issue pertaining to issue of sanction and we shall not be taken to have expressed any view on merits which shall be considered independently. It has been stated by the learned counsel that the matter is listed before the Special Court on 11.12.2019. The Respondent No.1 shall appear before the Special Court on that day and the matter shall, thereafter, be proceeded in accordance with law.

17. This Appeal is allowed in aforestated terms.

J. [Uday Umesh Lalit]

J. [Indu Malhotra]

J. [Krishna Murari]

New Delhi;
December 05, 2019.


 

State of NCT of Delhi Vs Shiv Charan Bansal & Ors – 05/12/2019

SUPREME COURT OF INDIA JUDGMENTS

Order of Discharge-Sections 120B, 302, 201 r.w. S.34 IPC and Sections 25, 27, 54, 59 of the Arms Act- In the present case, on account of the inconsistency in framing charges by the Sessions Court against the six accused, the trial has got truncated. The trial with respect to three accused i.e. Sachin Bansal, Narendra Mann, and the alleged contract killer – Joginder Singh Sodhi has proceeded in the absence of the other three accused viz. Shiv Charan Bansal, Lalit Mann and Shailendra Singh.

The present case is one of criminal conspiracy based on circumstantial evidence. For a case of criminal conspiracy to be established, each link in the chain of circumstances would get completed, only if the evidence collected by the prosecution against all the accused was taken into consideration holistically.

Since the trial in the present case has got truncated, it is necessary that the trial of the remaining three accused proceeds forthwith in accordance with law.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2248 OF 2010

State of NCT of Delhi …Appellant

Versus

Shiv Charan Bansal & Ors. …Respondents

WITH

CRIMINAL APPEAL NO. 2247 OF 2010

Kanta Devi

…Appellant

Versus

State (NCT of Delhi) & Ors.

…Respondents

JUDGMENT

INDU MALHOTRA, J.

1. The present Criminal Appeals have been filed by the State (Criminal Appeal No. 2248 of 2010) and the complainant – Kanta Devi (Criminal Appeal No. 2247 of 2010) to challenge the Order of Discharge granted to Shiv Charan Bansal, Lalit Mann @ Nanhe, Shailendra Singh and Rajbir Singh by the Delhi High Court.

2. The factual matrix from which the present Appeals arise from is the filing of F.I.R No. 200/2006 by the Complainant Kanta Devi – widow of late S.N. Gupta on 21.03.2006 with the Police Station Mangolpuri, Delhi under Sections 120B, 302, 201 r.w. S.34 IPC and Sections 25, 27, 54, 59 of the Arms Act. The Complainant stated that on 21.03.2006, she was in the house with her husband – S.N. Gupta. At about 4:30 p.m., the doorbell rang, when a man aged between 25 to 30 years having a beard was standing at the gate, wearing spectacles and a black cap on his head, carrying a bag on his shoulder. He said that he had brought a courier from a bank addressed to S.N. Gupta, and would hand it over to him personally. She informed her husband about the courier. S.N. Gupta went to the main gate, while the informant returned to the kitchen. She then heard the sound of 2 or 3 gunshots from the gate. She rushed towards the gate and found that her husband had fallen on the floor, and was bleeding on account of gunshot injuries. She shouted for help, when the neighbours came and rushed her husband to Jaipur Golden Hospital, where he was declared dead. She stated that she would be able to recognise the man who had shot her husband.

3. Sub-Inspector Dharambir Singh along with Constable Vijay Kumar, and Constable Prasan Singh reached the spot, and recovered 3 used cartridges and blood-stained slippers from the scene of occurrence.

4. On the date of occurrence, the I.O. recorded the statement of Rajesh Gupta s/o the deceased u/S. 161 Cr.P.C. Rajesh Gupta handed over the envelope to the Police which was carried by the assailant addressed to his father S.N. Gupta at the time of the murder. Rajesh Gupta clearly attributed the murder to Shiv Charan Bansal and his son Sachin Bansal. He stated that he and his father S.N. Gupta were members of several chit fund committees run by Shiv Charan Bansal and his son Sachin Bansal. Rajesh Gupta and his father S.N. Gupta had put in a substantial amount of money in those committees. He further stated that they were reluctant to return the money invested in the committees to the deceased.

Rajesh Gupta further stated that he had entered into a partnership with Sachin Bansal in the firm M/s Accent Shoes Pvt. Ltd., which had its factory in Bahadurgarh. Rajesh Gupta stated that he wanted to separate from the partnership because Shiv Charan Bansal and his son Sachin Bansal had usurped the share of his father S.N. Gupta – deceased and were now trying to usurp the factory at Bahadurgarh. It was on account of these reasons that they have got the murder of his father committed.

5. On the same date, the statement of Satish Gupta, brother of the deceased was recorded u/S. 161 Cr.P.C. wherein he stated that he had invested in the committees run by Shiv Charan Bansal and his son Sachin Bansal. He further stated that his brother late S.N. Gupta, had invested large amounts of money in these committees. Shiv Charan Bansal and his son were refusing to return the money owed to both him and his brother. The deceased had told his brother that Shiv Charan Bansal and his son Sachin Bansal wanted to grab the factory at Bahadurgarh, and usurp a large amount of their share in the factory at D-268, Mangolpuri Industrial Area, after the partnership had been dissolved. He also attributed the murder of his brother – S.N. Gupta to Shiv Charan Bansal and his son.

6. The statement of Suresh Gupta, other brother of the deceased S.N. Gupta, was also recorded on the date of the occurrence u/S. 161 Cr.P.C. He stated that he was running his own business, and that Narendra Mann, Lalit Mann and their friends would make threatening calls to his son Naveen Gupta for money. Subsequently, Suresh Gupta also received threats from these persons, who visited his house several times to threaten him and his son, and stated that they would kill them and other family members. On the advice of his brother late S.N. Gupta, a complaint was lodged against Narendra Mann, Lalit Mann and their associates at Mangolpuri Police Station. He stated that his brother had been killed by Narendra Mann, Lalit Mann and his friends.

7. Naveen Gupta @ Cheenu s/o Suresh Gupta, nephew of the deceased S.N. Gupta, in his statement u/S. 161 Cr.P.C, stated that he had been receiving threats from Narendra Mann, Lalit Mann, Sachin Bansal and their friends as being the cause for the murder of the deceased.

8. On 01.06.2006, the statement of Ajit Prasad Gupta – third brother of the deceased, was recorded u/S.164 Cr.P.C., wherein he deposed that he had participated in various Chit Fund Committees run by Shiv Charan Bansal and his son Sachin Bansal. He stated that his brother late S.N. Gupta had invested in most of the Committees run by Shiv Charan Bansal and Sachin Bansal, who were refusing to return the money invested by the deceased.

9. On 31.05.2006, the statement of an independent witness Ashok Kumar Agarwal was recorded u/S. 164 Cr.P.C. The said witness stated that he had invested money in the committees run by Shiv Charan Bansal and his son Sachin Bansal. He further deposed that the deceased S.N. Gupta had also invested a large sum of money in almost all the committees run by accused – Shiv Charan Bansal and his son Sachin Bansal.

10. On 22.03.2006, the post mortem of the deceased was carried out at Sanjay Gandhi Memorial Hospital, Mangolpuri, wherein it was recorded that the deceased was brought dead at 4:50 p.m.

The Autopsy Surgeon found three entry wound points on the chest of the deceased. The lead of the bullets were recovered and handed over to the Police. The post mortem records that the death was caused by the following firearm injuries to the chest:

(i) entry wound of firearm present on the chest of size 1.5 cm x 104, 6.5 cm from midline and 6 cm above and 1 cm medial to the lt nipple;

(ii) entry wound of firearm present over outer and upper margin of Lt arcola of size 1.3 cm x 0.5 cm with collar of abrasion fracturing around that;

(iii) entry wound of firearm present over lt. Hypochondrium of size 1.6 cm x 1.0 cm.

It was recorded that the cause of death was shock due to assault by firearm and injury to the chest viscera and aorta.

The Police recovered the three used cartridges from the spot of occurrence. The lead taken out from the body of the deceased – S.N. Gupta was sent for forensic analysis to the Forensic Science Laboratory.

11. During investigation, Sachin Bansal was arrested on 29.03.2006. His disclosure statement was recorded. Narendra Mann, his brother Lalit Mann, and the advocate – Rajbir Singh were arrested on the same date, when they were traveling in an Esteem Car bearing No. DL 3C AG 6565. A black photo frame, a black cap, black goggles, and a photo of the deceased were recovered from the Esteem Car.

12. Narendra Mann made a disclosure and showed the shop from where he purchased the caps and the goggles. He offered to get Shailendra Singh arrested, stating that it was Shailendra Singh who had given the weapon of offence i.e. unlicensed pistol to be used for the murder. Narendra Mann got the Getz car recovered from the house in his village, in which the contract killer – Joginder Singh Sodhi allegedly travelled to the site of occurrence to murder S.N. Gupta.

A second set of black cap and goggles were recovered from the Getz car. Narendra Mann also offered to get Joginder Singh Sodhi – the contact killer arrested.

13. The unlicensed pistol along with two live cartridges were recovered from the office of accused – Shailendra Singh i.e. Flat No. A-11/35, Sector 7, Rohini, Delhi.

14. Disclosure Statements were made by Lalit Mann, Rajbir Singh and Sachin Bansal on 29.03.2006.

15. On 30.03.2006, Joginder Singh Sodhi – the contract killer was arrested.

The Test Identification Parade (“TIP”) was conducted on 10.04.2006. Joginder Singh refused to participate in the judicial TIP.

The Complainant – Kanta Devi identified him as the assailant during the investigation of the case.

16. On 04.06.2006, Shailendra Singh was arrested. Shailendra Singh identified the place from where the unlicensed pistol was recovered.

17. During investigation, notice was issued to Shiv Charan Bansal to join the investigation. However, Shiv Charan Bansal remained absconding for over a month. He was apprehended on 25.04.2006.

18. During investigation, the Call Detail Records of the accused were collected by the Investigating Officer on 09.06.2006.

We have perused the record of the Sessions Court, and find that the Call Detail Records of Shiv Charan Bansal are missing from the file.

19. The Charge Sheet was filed on 22.06.2006 against the following 7 accused – Narendra Mann, Lalit Mann, Rajbir Singh – advocate, Joginder Singh Sodhi, Sachin Bansal, Shiv Charan Bansal and Shailendra Singh for offences under S.120B, 302, and 201 read with S.34 IPC and S. 25 Arms Act.

20. The F.S.L Report records that the lead recovered from the body of the deceased was fired from the pistol recovered from the office of the accused – Shailendra Singh.

21. The envelope addressed to the deceased S.N. Gupta carried by the contract killer – Joginder Singh Sodhi was recovered from Rajesh Gupta s/o deceased S.N. Gupta. As per the report of the handwriting expert, the specimen handwriting of Joginder Singh Sodhi matched the writing on the envelope.

22. On 17.11.2006, the statement of Ramesh was recorded u/S. 161 Cr.P.C by the Police. He stated that he is a property dealer in Rohini, Delhi and had arranged the flat for Shailendra Singh, which was registered in the name of his wife Pooja Singh. Shailendra Singh used the said flat for his financing business. The unlicensed pistol along with two live cartridges were recovered from the office of Shailendra Singh.

23. The Forensic Report, Handwriting expert Report and the Ballistic Report were placed on record along with a Supplementary Charge on 26.11.2006.

24. As per the case of the prosecution, the material gathered during the investigation revealed a larger criminal conspiracy in which all the accused persons had participated. Shiv Charan Bansal and his son Sachin Bansal were in the business of running committees where monies would be invested. S.N. Gupta – the deceased and his son Rajesh Gupta had invested a substantial amount of money in these committees. Rajesh Gupta had been in partnership with Shiv Charan Bansal in a firm M/s Akash International which was subsequently dissolved. Rajesh Gupta and Sachin Bansal were also running another firm i.e. M/s. Accent Shoes Pvt. Ltd., the factory of which was located at Bahadurgarh. Rajesh Gupta and his father late S.N. Gupta had invested a substantial amount of money in these businesses. The monies invested in this firm by S.N. Gupta and his son were not returned by Shiv Charan Bansal and Sachin Bansal. The apprehension expressed by deceased S.N. Gupta to his brother Suresh Gupta was that the accused Shiv Charan Bansal and Sachin Bansal might take over the factory at Bahadurgarh. When S.N. Gupta and Rajesh Gupta would demand return of their investment in the factory at Bahadurgarh, Shiv Charan Bansal and Sachin Bansal would refuse on one pretext or the other.

According to the prosecution, Narendra Mann had given seven lakhs to Naveen Gupta – nephew of the deceased on the recommendation made by Sachin Bansal. Together with interest, the amount allegedly owed to Narendra Mann by Naveen Gupta worked out to about fifteen lakhs. Narendra Mann demanded the amount owed to him from Naveen Gupta and his father. Instead of repaying him the money, they lodged a Complaint against him with the Police. Narendra Mann spoke to Sachin Bansal, and asked him to return the monies which were owed by Naveen Gupta, since he had lent the money only on Sachin Bansal’s recommendation.

As per the prosecution Sachin Bansal told Narendra Mann that he too was owed money to the extent of over thirty lakhs by Naveen Gupta.

A criminal conspiracy was hatched by Sachin Bansal and Narendra Mann to eliminate S.N. Gupta, so that the monies invested by S.N. Gupta in the committees run by his father Shiv Charan Bansal and himself, could be retained by them, and he would then be able to pay Narendra Mann the money owed to him by Naveen Gupta. Shiv Charan Bansal offered to pay for the expenses involved in carrying out the murder of S.N. Gupta.

As per the version of the prosecution, Narendra Mann agreed to the above proposal. He first asked his cousin brother accused – Lalit Mann to carry out the murder of S.N.

Gupta by disguising himself as a Sikh. After initially agreeing, Lalit Mann subsequently backed out. Thereafter, Joginder Singh Sodhi, who was running a shop below the house of Lalit Mann, was asked by Narendra Mann to execute the murder of S.N. Gupta, which was agreed by him on payment of Rs. 2 lakhs. Joginder Singh Sodhi was shown the photograph of S.N. Gupta, and the exact location of his house.

It is alleged by the prosecution that accused Rajbir Singh, an advocate, had allegedly advised Narendra Mann that he should not use his own licensed weapon for committing the murder, but should use an unlicensed weapon identical to it, since the police would seek to connect the cartridges recovered from the site with the weapon.

Pursuant to the above conspiracy, Sachin Bansal took out a photo of S.N. Gupta from his marriage album, and gave it to Narendra Mann. He also showed Narendra Mann the house of S.N. Gupta and informed him of S.N. Gupta’s daily routine and further informed him that he receives couriers, packets/letters in connection with his investment in shares.

On the date of offence i.e. 21.03.2006, pursuant to the above criminal conspiracy, Narendra Mann borrowed the Getz car from his cousin, and the unlicensed pistol from Shailendra Singh with five cartridges. He then took Joginder Singh Sodhi to the place of occurrence in his Getz car by making him wear the goggles and cap, and gave an envelope to be given to S.N. Gupta. He parked the car near the apartment, and was waiting inside the car, while Joginder Singh went to the house of the deceased – S.N. Gupta. Joginder Singh caused the murder of S.N. Gupta by shooting him at point blank range. Narendra Mann then helped Joginder Singh to get away.

25. As per the version of the prosecution, the incident occurred on 21.03.2006, at about 4:30 p.m. Just prior to the incident at 3:51 p.m., accused – Narendra Mann from his mobile phone bearing No. 9818411470, made a call to the mobile phone of Sachin Bansal bearing No. 9818119624. After the murder was committed, the accused – Narendra Mann called the accused – Sachin Bansal at 4:48 p.m. The call records reveal that the accused – Narendra Mann and Sachin Bansal were in continuous contact with each other, before and after the occurrence of the incident.

26. The prosecution urged that, a prima facie case for offences under Section 120B IPC read with 302 r.w. 120B/34 IPC, Section 201 IPC and Section 25 of the Arms Act was made out against accused – Shiv Charan Bansal, Shailendra Singh, Lalit Mann and Rajbir Malik.

27. The Sessions Court vide Order dated 17.03.2008 held:

(i) That on the basis of the material brought on record, and the circumstances of the case, there was common intention between Narendra Mann and Joginder Singh Sodhi in the act of killing S.N. Gupta. The Sessions Court directed that Joginder Singh Sodhi be charged u/S. 302 read with S.34 IPC. Narendra Mann was charged u/S. 302 read with S.34 IPC and for the offence punishable u/S. 201 IPC for causing disappearance of the weapon of the offence after allegedly taking it from the alleged contract killer – Joginder Singh Sodhi.

Narendra Mann was further charged u/S. 25 of the Arms Act as he got the firearm and ammunition recovered from the office of co-accused Shailendra Singh. The material on record prima facie showed that Narendra Mann, who was holding a licensed firearm, handed over the same to Sachin Bansal along with ammunition, which was got recovered from the factory of Sachin Bansal. He was also charged u/S. 29B of the Arms Act.

(ii) The Sessions Court however discharged Lalit Mann of the alleged Offences u/S. 120B, 302 r.w. S. 34, 201 IPC and u/S. 25 Arms Act, on the ground that the only evidence which the prosecution had been able to place on the file against accused – Lalit Mann @ Nanhe is that he was found travelling in an Esteem car with the accused Narendra Mann on 29.03.2006, which was 8 days after the murder took place. It is the case of the prosecution that initially Narendra Mann had asked Lalit Mann to carry out the job of murdering of S.N. Gupta. He later backed out of the same. Thereafter, the job of carrying out the murder was assigned to accused – Joginder Singh Sodhi. This would indicate that Lalit Mann had disassociated himself from the alleged conspiracy. The disclosure statements of the accused persons including Narendra Mann and Lalit Mann are not sufficient evidence to connect the accused – Lalit Mann with the crime of killing S.N. Gupta.

(iii) With respect to Rajbir Singh the prosecution referred to the disclosure statements made by the accused – Narendra Mann and Rajbir Singh, to show that it was on the advice of Rajbir Singh, that accused Narendra Mann did not use his licensed weapon for the offence. Narendra Mann was further advised by Rajbir Singh, to keep his licensed weapon in the factory of Sachin Bansal, and arrange an unlicensed pistol for the murder. It was further pointed out that at the time of arrest, Narendra Mann was travelling with Rajbir Singh, and that they were in constant touch with Rajbir Singh on the cell phone.

The Sessions Court held that the disclosure statements made by the accused merely revealed that Rajbir Singh had tendered advice to Narendra Mann to the effect that he should not use his licensed pistol for carrying out the murder of S.N. Gupta. On the basis of the advice given by Rajbir Singh, accused – Narendra Mann kept his licensed pistol at the factory of Sachin Bansal, and arranged an unlicensed pistol from accused

– Shailendra Singh. Narendra Mann was apprehended while he was travelling with Rajbir Singh to the house of Sachin Bansal on 29.03.2006. The mere travelling of Rajbir Singh in a car with Narendra Mann could not be considered to be an offence.

The seizure memo of the articles recovered from the car, did not bear the signature of Rajbir Singh. It was not the case of the prosecution that the car either belonged to Rajbir Singh, or that the goods recovered from the car were arranged or belonged to Rajbir Singh. The material placed on the file was not sufficient to frame charges against accused – Rajbir Singh.

(iv) With respect to Shailendra Singh, the Sessions Court held that the unlicensed pistol along with two live cartridges were recovered from his office on the basis of the disclosure statement made by Narendra Mann. The Sessions Court held that the disclosure statement could not be relied upon as per Section 10 of the Evidence Act. There was no material to hold that Shailendra Singh had knowledge that the firearm that was being handed over to Narendra Mann would be used in the murder of S.N. Gupta.

The Sessions Court charged Shailendra Singh only for the offence u/S. 25 of the Arms Act for keeping an unlicensed firearm in his possession.

(v) With respect to the accused – Shiv Charan Bansal and Sachin Bansal, the prosecution placed reliance on the statements of Rajesh Gupta s/o the deceased, Naveen Gupta – nephew of the deceased, the statement of Satish Gupta and Suresh Gupta – brothers of the deceased, who disclosed the motive behind the murder on the very date of the murder itself. As per their statements, it was revealed that the deceased S.N. Gupta and his son – Rajesh Gupta, entered into partnerships in the firms M/s Akash International and M/s Accent Shoes Pvt. Ltd, with Shiv Charan Bansal and his son. The Bansal father-son duo wanted to misappropriate the share of the deceased. The further case brought on record was that the deceased had invested a substantial amount of money in the committees organised by Shiv Charan Bansal, which he was refusing to return.

The Sessions Court held that there may be a motive on the part of the accused persons in causing the death of S.N. Gupta, but motive alone was not sufficient to frame charges u/S. 302 IPC.

The Sessions Court discharged Shiv Charan Bansal since the prosecution had collected evidence against him only in the form of disclosure statements from the accused persons after arrest. These disclosure statements are with respect to facts which came to light after the arrest of the accused persons. Section 10 of the Evidence Act does not permit the use of disclosure statements to connect the accused persons with the crime.

(vi) The Sessions Court held that the prosecution has been able to make out a prima facie case to frame charges against accused – Sachin Bansal for the offence u/S. 25 of the Arms Act, since Sachin Bansal got the licensed pistol belonging to accused – Narendra Mann recovered from his factory premises.

The Sessions Court held that the prosecution failed to make out a prima facie case against accused – Rajbir Singh, Lalit Mann and Shiv Charan Bansal who were discharged.

28. The State filed Crl. Revision Petition No. 335 of 2008 before the Delhi High Court, against the Judgment dated 17.03.2008 passed by the Sessions Court to the extent that

(i) the accused – Shiv Charan Bansal, Lalit Mann @ Nanhe and Rajbir Singh were wrongly discharged; (ii) accused –

Shailendra Singh and Sachin Bansal were charged only for the offence under S.25 of the Arms Act, instead of S. 302 r.w. S. 120B IPC; (iii) accused – Narendra Mann and Joginder Singh Sodhi were charged under S.302 r.w. S.34 IPC, although they ought to have been charged under S.120B IPC.

The complainant – Kanta Devi filed Crl. Revision Petition No. 191 of 2008 praying for the same reliefs as the State.

29. Accused – Shailendra Singh filed Crl. Revision Petition No. 430 of 2008 and a separate Crl. Revision Petition No. 405 of 2008 was filed by accused – Sachin Bansal challenging the Order of the Sessions Court wherein they were charged under S.25 of the Arms Act. According to them, they ought to have been discharged by the Sessions Court.

Accused – Narendra Mann filed Crl. Revision Petition No. 342 of 2008 challenging the Order passed by the Sessions Court wherein he was charged for offences u/S.302 r.w. S.34, 201 IPC and S.25 and S.29(b) of the Arms Act.

30. The High Court vide the Common Judgment dated 29.05.2009 held that: (i) Narendra Mann, Sachin Bansal and Joginder Singh Sodhi were to be charged u/S. 302 read with S. 34 IPC read with 120B IPC and S. 25/27 Arms Act and substantively u/S. 120B IPC alone.

The Judgment of the Sessions Court ordering discharge of Shiv Charan Bansal, Shailendra Singh, Lalit Mann and Rajbir Singh was affirmed by the High Court.

31. The State and the Complainant – Kanta Devi filed the present Special Leave Petitions to challenge the Judgment and Order passed by the Delhi High Court dated 29.05.2009. Leave to Appeal was granted vide Order dated 26.11.2010.

32. FINDINGS AND ANALYSIS

At the stage of framing charges under S.227 and S.228 Cr.P.C, the Court is required to consider whether there was sufficient material on record to frame charges against Shiv Charan Bansal, Shailendra Singh, Lalit Mann and Rajbir Singh. The prosecution alleged that the offences u/S. 120B, S.302 r.w. S.120B/34, S.201 IPC and S.25 of the Arms Act ought to have been framed.

I. Scope of Section 227 and 228 of the Cr.P.C.

The Court while considering the question of framing charges under Section 227 of the Cr.P.C has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out against the accused. The test to determine prima facie case would depend upon the facts of each case.

If the material placed before the court discloses grave suspicion against the accused, which has not been properly explained, the court will be fully justified in framing charges and proceeding with the trial.

The probative value of the evidence brought on record cannot be gone into at the stage of framing charges. The Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the ingredients constituting the alleged offence.

At this stage, there cannot be a roving enquiry into the pros and cons of the matter, the evidence is not to be weighed as if a trial is being conducted.

Reliance is placed on the Judgment of this Court in State of Bihar v. Ramesh Singh1 where it has been held that at the stage of framing charges under Sections 227 or 228 of the Cr.P.C., if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused had committed the offence, then the Court should proceed with the trial.


1 (1977) 4 SCC 39.


In a recent Judgment delivered in Dipakbhai Jagdishchandra Patel v. State of Gujarat and Another 2 in Crl. Appeal No. 714 of 2019 decided on 24.04.2019, this Court has laid down the law relating to framing of charges and discharge, and held that all that is required is that the court must be satisfied with the material available, that a case is made out for the accused to stand trial. A strong suspicion is sufficient for framing charges, which must be founded on some material. The material must be such which can be translated into evidence at the stage of trial. The veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged at this stage, nor is any weight to be attached to the probable defence of the accused at the stage of framing charges. The court is not to consider whether there is sufficient ground for conviction of the accused, or whether the trial is sure to end in the conviction.

II. Criminal Conspiracy

The present case is one where the prosecution has alleged that there was a criminal conspiracy to murder


2 2019 SCC Online SC 588.


S.N. Gupta by all the accused. The crime was not committed at the spur of the moment, but was preceded by meticulous planning where each of the accused have played a separate role to achieve the common illegal object of carrying out the murder of S.N. Gupta.

The essential ingredients of Criminal Conspiracy as per judicial dicta are: (i) an agreement between two or more persons; (ii) agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means.

Reliance is placed on the Judgment of Ghulam Sarbar v. State of Bihar 3 on this issue, wherein it was held that what is necessary for the prosecution to show is the meeting of minds of two or more persons for doing or causing to be done an illegal act, or an act by illegal means.

A criminal conspiracy is generally hatched in secrecy, and it is difficult, if not impossible, to obtain direct evidence. Reliance is placed on the Judgment of this


3 (2014) 3 SCC 401.


Court in R. Venkatakrishnan v. CBI4. The manner and circumstances in which the offence has been committed, and the level of involvement of the accused persons are relevant factors. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in the general conspiracy, to accomplish the common object.

Conspiracy is mostly proved by circumstantial evidence by taking into account the cumulative effect of the circumstances indicating the guilt of the accused, rather than adopting an approach by isolating the role played by each of the accused. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. Reliance is placed on the Judgment of State (NCT) of Delhi v. Navjot Sandhu @ Afsan Guru5.

In Kehar Singh & Ors. v. State (Delhi Administration)6 this Court held that the most important ingredient in the


4 (2009) 11 SCC 737.

5 (2005) 11 SCC 600.

6 (1988) 3 SCC 609.


offence of conspiracy is an agreement between two or more persons to do an illegal act. The prosecution will have to rely upon circumstantial evidence. The Court must enquire whether the persons are independently pursuing the same unlawful object or whether they have come together for the pursuit of the unlawful object. The offence of conspiracy requires some kind of physical manifestation of the agreement. However, the same need not be proved, nor is it necessary to prove the actual words of communication. It is sufficient if there is a tacit understanding between the conspirators for the execution of the common illegal object.

In cases of criminal conspiracy, better evidence than acts and statements of co-conspirators is hardly ever available.

In the facts of the present case, we find that there is ample material brought on record which creates a grave suspicion about the involvement of the accused viz. Shiv Charan Bansal, Lalit Mann and Shailendra Singh in the murder of the deceased S.N. Gupta.

III. Shiv Charan Bansal

The evidence produced by the prosecution with respect to the involvement of Shiv Charan Bansal are broadly enumerated as follows:

(i) Rajesh Gupta s/o the deceased attributed the murder of his father to Shiv Charan Bansal and his son Sachin Bansal, for misappropriation of the amounts invested by his late father S.N. Gupta in all the committees/chit funds run by the Bansals.

Rajesh Gupta further deposed about the business transactions between Shiv Charan Bansal and his son, with the deceased S.N. Gupta in two firms M/s. Accent Shoes Pvt. Ltd. and M/s. Aakash International, where Shiv Charan Bansal had usurped the share of the deceased, and was now trying to take over their factory at Bahadurgarh.

(ii) This was corroborated by the statement of the brother of the deceased viz. Satish Gupta which was recorded soon after the murder took place. The said witnesses have made the statements soon after the murder of the deceased.

(iii) The statement of the third brother of the deceased viz. Ajit Prasad Gupta’s statement was recorded u/S. 164 Cr.P.C. on 01.06.2006 by the Court of the Metropolitan Magistrate. Ajit Gupta disclosed that he knew Shiv Charan Bansal since 10 to 15 years. He stated that he had participated in the committees organised by Shiv Charan Bansal. The committees were organised by Shiv Charan Bansal, and his son Sachin Bansal. There were 70 to 80 committees in a month organised by Shiv Charan Bansal. The deceased S.N. Gupta had invested a substantial amount of money in most of these committees, and was a member of every group. When S.N. Gupta demanded return of the money, Shiv Charan Bansal refused to return the same on one pretext or another, which he learnt when he went to attend the committees.

(iv) The statement of independent witness viz. Ashok Kumar Agarwal was recorded u/S. 164 Cr.P.C. on 31.05.2006 by the Metropolitan Magistrate. This witness stated that he had participated in four committees of 10 lakhs each run by Shiv Charan Bansal. He was aware that the deceased S.N. Gupta had invested in the maximum number of committees run by Shiv Charan Bansal, in which his eldest son Sachin Bansal used to help him.

(v) Both the Sessions Court and the High Court have noted that all the witnesses have clearly attributed the murder to Shiv Charan Bansal and his son Sachin Bansal. The motive of the crime was to misappropriate the investments made by the deceased in the committees of Shiv Charan Bansal. Rajesh Gupta has further deposed that the further circumstance was on account of the business dealings between the families of the deceased and Shiv Charan Bansal.

As per the case of the prosecution, the murder of S.N. Gupta was contrived by Shiv Charan Bansal and his son Sachin Bansal with Narendra Mann, and the other co-conspirators being Lalit Mann who arranged the contract killer – Joginder Singh Sodhi, Shailendra Singh who provided the weapon of offence which was recovered from his office, along with live cartridges.

(vi) The contemporaneous Call Detail Records (CDRs) between Sachin Bansal and Narendra Mann, who accompanied Joginder Singh Sodhi – the contract killer, would constitute strong material for framing the charge against all the accused.

The murder of S.N. Gupta took place at about 4:30 p.m. Narendra Mann from his cell phone bearing No. 9818411470 made a call at 3:51 p.m. to Sachin Bansal on his cell phone bearing No. 9818119624 prior to the execution of the crime. After the murder was committed, Narendra Mann called Sachin Bansal on his cell phone at 4:48 p.m. These call records in quick succession immediately before and after the murder was committed, lead to a grave suspicion about the complicity of these accused. The Call Detail Records reveal that the accused were in close contact and communication with each other both before and after the occurrence.

The I.O. Satyapal Singh, in his deposition dated 08.01.2015, had stated that on 09.06.2006, he had obtained the Call Detail Records of the mobile phones of all the accused persons from the ACP Office.

We have perused the record of the Sessions Court, and find that the Call Detail Records of Shiv Charan Bansal, which was a crucial piece of evidence was deliberately not placed by the I.O. along with the Charge Sheet. The missing Call Detail Records of only Shiv Charan Bansal creates a strong suspicion against him.

(vii) The records of the committees run by Shiv Charan Bansal were alleged to have been destroyed. This creates a strong suspicion about the conduct of Shiv Charan Bansal who was running 75 to 80 committees/chit funds at that time. In his disclosure statement dated 26.04.2006, Shiv Charan Bansal stated that he is having all the records of the committees. However, two days later, on 28.04.2006, he changed his version and stated that the committee records have been destroyed by his son Sachin Bansal.

The prosecution has alleged that the records of the committees were burnt/destroyed by the father-son duo. The destruction of the records of the committees, which would have revealed the substantial investments made by late S.N. Gupta is an incriminating factor.

(viii) The conduct of Shiv Charan Bansal after the murder was committed, is also of relevance. The police apprehended Sachin Bansal on 29.03.2006 from his factory.

Shiv Charan Bansal remained absconding after the murder was committed on 21.03.2006, and did not join the investigation despite efforts by the Police. He was apprehended after more than one month on 25.04.2006.

After the commission of the crime, accused – Shiv Charan Bansal absconded and did not join the investigation. The said circumstance of absconding immediately after the murder of S.N. Gupta was committed, would be admissible as relevant ‘conduct’ u/S. 8 of the Indian Evidence Act.

The prosecution has made out a strong prima facie case and the materials on record are sufficient to frame charges against Shiv Charan Bansal. The Sessions Court and the High Court were not justified in discharging the accused – Shiv Charan Bansal for the offences u/S.302 r.w. S.34, S.120B, S.201 IPC for destruction of evidence.

The materials gathered by the prosecution raise a strong suspicion against both Shiv Charan Bansal and his son Sachin Bansal in hatching the conspiracy for the murder of late S.N. Gupta.

We are surprised that in the case of Sachin Bansal the co-accused, the Sessions Court framed charges only u/S. 25 of the Arms Act, even though there was sufficient material for his prosecution u/S. 120B r.w. S.302/34 and S.201 IPC.

The High Court vide Order and Judgment dated 29.05.2009 directed the prosecution to frame charges u/S. 120B r.w. S.302 and S.34 IPC, S.120B r.w. S.25 and 27 of the Arms Act, and u/S. 120B substantively, against Sachin Bansal, and to conduct the trial accordingly.

During the pendency of the present appeals, the Sessions Court proceeded with the trial of Sachin Bansal under the charges as directed by the High Court. The Sessions Court vide Judgment and Order dated 04.02.2016, acquitted him primarily on the ground that the allegations against him were circumstantial in nature, and there was no direct evidence to prosecute him.

The State and the private complainant have filed Crl. Appeal No. 1155 of 2017 and Crl. Appeal No. 1154 of 2017 to challenge the acquittal of Sachin Bansal, which is pending final determination by the High Court.

IV. Lalit Mann

(i) The prosecution relied upon the statement of Naveen Gupta @ Cheenu son of Suresh Gupta, and nephew of the deceased. The said witness in his statement u/S. 161 Cr.P.C, which was recorded soon after the murder had occurred on the same date, stated that Narendra Mann, Lalit Mann, Sachin Bansal and his friends used to threaten him over the phone. Naveen Gupta further stated that these persons also came to his house, and threatened to kill his family. He further stated that his father Suresh Gupta, on the advice of the deceased S.N. Gupta, got a complaint registered at Mangolpuri Police Station against Lalit Mann and others. It was further stated that he was sure that his uncle S.N. Gupta was murdered by Narendra Mann, Lalit Mann, Sachin Bansal and his friends.

(ii) The disclosure statement made by Narendra Mann reveals that initially he had asked Lalit Mann to carry out the murder of S.N. Gupta.

The accused – Lalit Mann had full knowledge of the criminal conspiracy hatched to murder the deceased S.N. Gupta.

(iii) Soon after the murder took place, Narendra Mann and Lalit Mann were absconding.

Since Lalit Mann did not join the investigation after the commission of the crime, the conduct of the accused in absconding would be admissible as relevant ‘conduct’ u/S. 8 of the Indian Evidence Act.

(iv) On 29.03.2006 i.e. eight days after the murder

took place, three of the accused viz. Narendra Mann, Lalit Mann and Rajbir Singh were apprehended by the police while travelling in an Esteem car. The police recovered incriminating objects i.e. photo of the deceased which was given to the contract killer for identification, goggles and black cap worn by the contract killer – Joginder Singh to conceal his identity, from the car.

(v) The Call Detail Records of Lalit Mann reveal that from his cell phone bearing No. 9810254600, he was in communication with the contract killer Joginder Singh Sodhi on his cell No. 9871791501 prior and subsequent to the commission of the crime.

The Courts below were unjustified in not framing the charges u/S., 302 r.w. S.34, S120B IPC against accused Lalit Mann.

V. Shailendra Singh

As per the case of the prosecution, Shailendra Singh provided the weapon of offence. Furthermore, after the crime was committed, Shailendra Singh remained absconding for a period of 75 days.

(i) The recovery of the weapon of offence i.e. an unlicensed 7.65 mm bore pistol along with two live cartridges from the office of this accused at A 1/25, Sector 7, Rohini, Delhi creates a strong suspicion of his involvement in the conspiracy to murder late S.N. Gupta.

The office from where the recovery was made admittedly belongs to the wife of Shailendra Singh. This is corroborated by the deposition u/S. 161 Cr.P.C. of Ramesh, an independent witness, a property dealer, who had arranged the purchase of flat No. A 1/35, Sector 7, Rohini, Delhi by Shailendra Singh, which was registered in the name of his wife Pooja Singh. Shailendra Singh used the said flat as his office to carry out his financing business.

(ii) The FSL Report dated 18.10.2006 has certified that the weapon and cartridges used in the murder of S.N. Gupta were recovered from the office of Shailendra Singh.

(iii) The Ballistic Report has certified that the three used cartridges recovered from the site of occurrence, and the lead retrieved from the body of the deceased, matched with the live cartridges recovered from the house of Shailendra Singh and were fired from the unlicensed pistol recovered from house of Shailendra Singh.

(iv) After the commission of the crime, the accused Shailendra Singh was in possession of the weapon of offence, which was lying concealed in his office.

The circumstance of the weapon of offence being found in the custody and possession of Shailendra Singh, would be admissible as “conduct” under Section 8 of the Indian Evidence Act, irrespective of the statements made by the co accused.

The crucial recovery of the weapon of offence from the house of Shailendra Singh, was a very important circumstance in the chain of events, which was sufficient to proceed against him in trial u/S. 302 r.w. S.34 and 120B IPC.

(v) The call detail records produced before the Sessions Court, reveals the communication between Narendra Mann and Shailendra Singh on the date of the murder, which is relevant material as per Section 8 of the Evidence Act.

(vi) It is surprising that the Sessions Court and the High Court having accepted the recovery of the unlicensed weapon from the office of Shailendra Singh, charged him only with the offence u/S. 25 of the Arms Act.

VI. Rajbir Singh

With respect to the discharge of the accused – Rajbir Singh, the Order of the Sessions Court and High Court is not disturbed, as we find that there is not sufficient material to prosecute him.

VII. Narendra Mann

Narendra Mann was charged by the Sessions Court u/S. 302 r.w. S.34, S. 201 IPC and S. 25 and 29(b) of the Arms Act by the Sessions Court.

The Sessions Court vide Judgment and Order dated 04.02.2016 acquitted Narendra Mann.

The State has filed Crl. Appeal No. 1155 of 2017, and the Complainant – Kanta Devi filed Crl. Appeal No. 1154 of 2017 before the High Court which are pending determination.

VIII. Section 223 of the Cr.P.C. provides that persons accused of the same offence, committed in the course of the same transaction, must be jointly charged and tried.

In the present case, on account of the inconsistency in framing charges by the Sessions Court against the six accused, the trial has got truncated. The trial with respect to three accused i.e. Sachin Bansal, Narendra Mann, and the alleged contract killer – Joginder Singh Sodhi has proceeded in the absence of the other three accused viz. Shiv Charan Bansal, Lalit Mann and Shailendra Singh.

The present case is one of criminal conspiracy based on circumstantial evidence. For a case of criminal conspiracy to be established, each link in the chain of circumstances would get completed, only if the evidence collected by the prosecution against all the accused was taken into consideration holistically.

Since the trial in the present case has got truncated, it is necessary that the trial of the remaining three accused proceeds forthwith in accordance with law.

With respect to the other three accused i.e. Sachin Bansal, Narendra Mann and Joginder Singh the trial was conducted in the absence of the other three alleged co-conspirators. The Order of acquittal with respect to Sachin Bansal and Narendra Mann is pending before the High Court.

S.386 Cr.P.C. defines the powers of the appellate court in dealing with appeals. Clause (a) of S.386 Cr.P.C. is restricted to the powers of the High Court since an appeal against an Order of acquittal lies to the High Court. The appellate court may direct the accused to be re-tried, not only when it deals with an appeal against acquittal, but also when it deals with an appeal against conviction. Under clause (a) the High Court may reverse the Order of acquittal and direct that further enquiry be made, or the accused may be re-tried, or may find him guilty and pass sentence thereon. Reliance is placed on the judgment of this Court in Isaac alias Kishore v. Ronald Cheriyan & Ors7.

IX. As an appellate Court, the High Court may take further evidence while considering the Appeals u/S.391 Cr.P.C, if it is considered necessary, and take additional evidence on record. The High Court may also permit recording of statements u/S.313 Cr.P.C, if considered necessary, as


7 (2018) 2 SCC 278.


held by this Court in Alister Anthony Pareira v. State of Maharashtra8 and in Asraf Ali v. State of Assam.9

X. The High Court may take up the pending appeals in the case of Sachin Bansal, Narendra Mann and Joginder Singh Sodhi, after the conclusion of the trial of Shiv Charan Bansal, Lalit Mann and Shailendra Singh, the remaining accused by the Sessions Court in the present case.

XI. Conclusions & Directions: –

1. The Criminal Appeal filed by the State of NCT of Delhi being Crl. Appeal No. 2248 of 2010, and the private Complainant – Kanta Devi being Cr. Appeal No. 2247 of 2010 are allowed in Part.

We direct the Additional Sessions Judge, Rohini Courts to proceed with the trial in accordance with law in Sessions Case No. 6/2007 arising out of FIR


8 (2012) 2 SCC 648.

9 (2008) 16 SCC 328.


No. 200/2006 dated 21.03.2006 with respect to the following accused: –

a. The Additional Sessions Judge, Rohini Courts, Delhi is directed to frame charges against Shiv Charan Bansal u/S. 302 r.w. S.34 IPC and S. 120B, and S.201 IPC and proceed with the trial in accordance with law.

b. We direct the Additional Sessions Judge, Rohini Courts, Delhi to frame Charges against Lalit Mann u/S. 302 r.w. S.34 IPC and S.120B IPC and proceed with the trial in accordance with law.

c. We direct the Additional Sessions Judge, Rohini Courts, Delhi to frame charges against Shailendra Singh u/S.302 r.w. 34 IPC and S. 120B IPC, and S. 25, 27, 54 and 59 of the Arms Act.

2. Let a copy of this Judgment be sent to the Additional Sessions Judge, Rohini Courts, Delhi for conducting the trial against the aforesaid accused in Sessions Case No. 6/2007 arising out of FIR No. 200/2006.

3. We direct the Additional Sessions Judge, Rohini Courts, Delhi to fix a time schedule, and proceed with the trial on a day to day basis, and conclude the same preferably within a period of six months from today.

4. The Additional Sessions Judge, Rohini Court, Delhi is directed to report the progress of the case to this Court after three months.

5. Let a copy of this Judgment be also forwarded to the High Court and placed in the file of pending Crl. Appeal Nos. 1155 of 2017 and 1154 of 2017.

6. We affirm the Judgment of the High Court qua the acquittal of Mr. Rajbir Singh Malik @ Raju – Accused No.3.

J. (INDU MALHOTRA)

J. (R. SUBHASH REDDY)

New Delhi
December 5, 2019.


Mahipal Vs Rajesh Kumar @ Polia & Anr-05/12/2019

SUPREME COURT OF INDIA JUDGMENTS

Cancellation of Bail: The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 1843 of 2019

@SLP (Crl.) No. 6339 of 2019

Mahipal …Appellant

Versus

Rajesh Kumar @ Polia & Anr. …Respondents

WITH

Criminal Appeal No. 1844 of 2019
@SLP (Crl.) No. 6340 of 2019

WITH

Criminal Appeal No. 1845 of 2019
@SLP (Crl.) No. 6341 of 2019

WITH

Criminal Appeal No. 1846 of 2019

@SLP (Crl.) No. 7052 of 2019

AND WITH
Criminal Appeal No. 1847 of 2019

@SLP (Crl.) No. 7053 of 2019

Act: Sections 147, 148, 149, 302 and 397 of the Indian Penal Code

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 Leave granted.

2 This batch of appeals arises from a judgment of a learned Single Judge of the High Court of Rajasthan at its Jaipur Bench dated 10 May 2019. Allowing the bail application filed under Section 439 of the Code of Criminal Procedure 1973 1, the High Court enlarged the first respondent on bail subject to certain conditions therein. The original complainant is in appeal before this Court.

3 By similar orders, the learned Single Judge granted bail to the other four accused – Anil Kumar, Ajay Kumar, Vikas Kumar and Vijay Kumar. The appeals filed by the appellant against those orders have been tagged with the present appeal. Since the facts in all these matters and the questions involved are similar, they have been heard together and are being disposed of by this common judgment. For the sake of convenience, the facts in SLP (Crl.) No. 6339 of 2019 are discussed.

4 A First Information Report2 was lodged by the appellant on 3 December 2018 stating that his now deceased nephew – Akhilesh had visited town on leave for a month for his marriage. It was stated that at about 7.00 pm on 2 December


1 CrPC

2 FIR No. 347/2018


2018, the deceased and his friend Aashish left the matrimonial home to run an errand. At about 7.30 pm, the deceased and Aashish stopped their bike on the road which caused a quarrel with two accused persons – Vijay and Anil, who then hurled abuses at the deceased. At that time, five to six boys armed with dandas assaulted the deceased who was rescued by near-by villagers. It was stated that the deceased left the scene on his motorcycle only to be confronted a short distance thereafter by the accused – Anil, Ajay, Rajesh (the first respondent), Vikas and Vijay. It was alleged that the accused used rods to beat the deceased with an intention to kill him. It was alleged that after beating the deceased, the accused fled from the scene of the incident. The deceased was rushed to Jhunjhunu R & R Hospital at Chirawa. However, owing to the serious nature of the injuries, he was referred to Fortis Hospital at Jaipur where he was declared dead.

5 The post-mortem report was recorded on 3 December 2018. Twenty-seven ante-mortem injuries on the body of the deceased were noted. The first respondent was arrested on 3 December 2018. The statements under Section 161 of the CrPC of the appellant and Aashish were recorded. A charge-sheet was filed against the five accused on 10 March 2019 under Sections 147, 148, 149, 302 and 397 of the Indian Penal Code 1908 3 Cognizance was taken by the Judicial Magistrate, Pilani on 27 March 2019. As the accused were charged under Section 302, the case was committed to the Additional Sessions Judge, Jhunjhunu for trial.


3 Penal Code


6 The bail application filed by the first respondent before the Additional Sessions Judge was rejected on 10 April, 2019. Thereafter, the first respondent filed a bail application before the High Court of Rajasthan, which was allowed. The appellant has filed the present appeal before this Court assailing the order of the High Court enlarging the first respondent on bail. Notice was issued by this Court on 12 July 2019.

7 Assailing the judgment of the High Court, the learned counsel appearing on behalf of the appellant submits:

(i) A prima facie involvement of the accused has emerged upon investigation, in a case involving a gruesome murder. There was no reason for the High Court to exercise its power to grant bail;

(ii) The High Court has not passed a reasoned order justifying the grant of bail to the accused;

(iii) The High Court failed to appreciate the statement of the sole injured eye-witness Aashish who was present at the spot of the incident that the accused were responsible for the death of the deceased;

(iv) The post-mortem report observes twenty-seven ante-mortem injuries and opines that the injuries causing death were inflicted within six hours of death; and

(v) The phone of the deceased was recovered from one of the accused Anil, while the bike involved in the incident was recovered from the first respondent.

8 The second respondent – the State of Rajasthan has filed a counter-affidavit assailing the order of the High Court on grounds similar to those urged by the appellant. It was also stated that another FIR4 had been registered against the friends of the accused alleging an intention to kill the friend of the deceased –
Ashish.

9 On the other hand, the learned counsel appearing on behalf of the first respondent contended that:

(i) On the date of the incident, there was an altercation between the deceased and the first respondent, in which the deceased was the aggressor. Thereafter, the deceased fell off his bike and suffered injuries which caused his eventual death;

(ii) The first respondent has been in custody for five months on the basis of a false allegation in the FIR;

(iii) Even on a reading of the allegations in the FIR and the charge sheet, no prime facie case has been made out against the accused justifying the setting aside of bail; and

(iv) The registration of an FIR against the friends of the accused has no bearing on the present case.

A common counter affidavit was filed by all the five accused before this Court reaffirming the above contentions.

10 These rival submissions fall for our consideration.


4 FIR No. 52/2019


11 Essentially, this Court is required to analyse whether there was a valid exercise of the power conferred by Section 439 of the CrPC to grant bail. The power to grant bail under Section 439 is of a wide amplitude. But it is well settled that though the grant of bail involves the exercise of the discretionary power of the court, it has to be exercised in a judicious manner and not as a matter of course. In Ram Govind Upadhyay v Sudarshan Singh5, Justice Umesh Banerjee, speaking for a two judge Bench of this Court, laid down the factors that must guide the exercise of the power to grant bail in the following terms:

“3. Grant of bail though being a discretionary order — but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case…The nature of the offence is one of the basic considerations for the grant of bail — more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.

4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being:

(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be


5 (2002) 3 SCC 598


considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

12 The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straight jacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused sub-serves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail.

13 The principles that guide this Court in assessing the correctness of an order passed by the High Court granting bail were succinctly laid down by this Court in Prasanta Kumar Sarkar v Ashis Chatterjee6. In that case, the accused was facing trial for an offence punishable under Section 302 of the Penal Code. Several bail applications filed by the accused were dismissed by the Additional


6 (2010) 14 SCC 496


Chief Judicial Magistrate. The High Court in turn allowed the bail application filed by the accused. Setting aside the order of the High Court, Justice DK Jain, speaking for a two judge Bench of this Court held:

―9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

12. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non-application of mind, rendering it to be illegal…‖

14 The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case by case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding.

The decision of this Court in Prasanta has been consistently followed by this Court in Ash Mohammad v Shiv Raj Singh,7 Ranjit Singh v State of Madhya Pradesh8, Neeru Yadav v State of U.P.9, Virupakshappa Gouda v State of Karnataka10, and State of Orissa v Mahimananda Mishra11.

15 The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an


7 (2012) 9 SCC 446

8 (2013) 16 SCC 797

9 (2014) 16 SCC 508

10 (2017) 5 SCC 406

11 (2018) 10 SCC 516


assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted. In Neeru Yadav v State of Uttar Pradesh,12 the accused was granted bail by the High Court. In an appeal against the order of the High Court, a two judge Bench of this Court surveyed the precedent on the principles that guide the grant of bail. Justice Dipak Misra (as the learned Chief Justice then was) held:

…It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court…‖

16 Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers


12 (2015) 15 SCC 422


from a non-application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment. The order of the High Court in the present case, in so far as it is relevant reads:

―2. Counsel for the petitioner submits that the petitioner has been falsely implicated in this matter. Counsel further submits that, the deceased was driving his motorcycle, which got slipped on a sharp turn, due to which he received injuries on various parts of body including ante-mortem head injuries on account of which he died. Counsel further submits that the challan has already been presented in the court and conclusion of trial may take long time.

3. Learned Public Prosecutor and counsel for the complainant have opposed the bail application.

4. Considering the contentions put-forth by the counsel for the petitioner and taking into account the facts and circumstances of the case and without expressing opinion on the merits of the case, this court deems it just and proper to enlarge the petitioner on bail.‖

17 In assessing the rival submissions, it is necessary to advert to the findings of the post-mortem report dated 3 December 2018.

On the basis of the injuries, the post-mortem report concluded:

―All above mentioned injuries are ante mortem in nature.

Duration within about 6 hrs prior to death.

We the members of medical board are of the opinion that cause of death is COMA brought about as a result of ante mortem head injuries mentioned in this PMR, sufficient to cause death in ordinary course of nature. However final opinion will be given after receiving FSL reports of above sent samples.

A total of twenty-seven ante-mortem injuries were recorded of which seven were found to be inflicted on the head. This led the members of the medical board to conclude that the cause of death was coma brought about by the result of the head injuries. The learned counsel for the first respondent contended that the deceased fell from the bike and sustained injuries which led to his death. However, it is not for the court to assess in detail the evidence on record to come to a conclusive finding on a chain of causation. A court assessing a plea of bail is required to find a prima facie view of the possibility of the commission of the crime by the accused and not conclude that the alleged crime was in fact committed by the accused beyond reasonable doubt.

18 The statement of Aashish Kumar who was allegedly present with the deceased at the time of the incident was recorded under Section 161. The statement details the alleged incident and names all five accused, attributing to them the common intention to kill the deceased. It was stated that the accused thereafter drove away with the bike of the deceased.

19 The following extract from the charge-sheet dated 10 March 2019 is relevant:

―…Thereafter, in compliance to the Order No. Complaint/2018/4899-4900 dated 28.12.18 of the Hon’ble Superintendent of Police of the District, further investigations of the case were started by the Circle Officer, Smt. Mamta Saraswat, R.P.S. Circle, Jhunjhunu City. During investigation proceedings, Circle Officer Smt. Mamta Saraswat, R.P.S. Circle Jhunjhuna City conducted investigations of all the accused persons arrested in the present case namely Vijay Kumar, Ajay Kumar alias Sheodan, Vikas Kumar, Anil Kumar alias Bhirriya and Rajesh Kumat alias Pauliya. Mobile of deceased was recovered from accused Anil Kumar alias Bhirriya according to his disclosure memo under Section

277 of the Evidence Act. Seizure memo of mobile was concluded and attached at the case file. Motorcycle used in the incident, according to the disclosure memo, was recovered from accused Rajesh Kumar alias Pauliya.

Thereafter, friends of Anil Kumar namely Ajay Kumar, Rajesh and Vikas, all the three came at the place of occurrence Garakhera Tiraha and immediately on coming there, they started giving beatings to deceased Akhilesh and Monu with lathies and thereafter, Anil Kumar and Vijay Kumar also started giving beatings to deceased Akhilesh and Monu.

…however, it has been mentioned that seven injuries have been caused at the head of the deceased.This makes clear that the accused persons caused many serious injuries on the head of the deceased at the place of occurrence Mark A at the time of occurrence on the head of the deceased, due to which, deceased after running from there went in Coma and collided with the Tank, due to which, Akhilesh has died due to the injuries sustained by him.‖

(Emphasis supplied)

20 Without expressing any finding or opinion on the merits of the case, a case has been made out for setting aside the bail granted by the High Court. The High Court has manifestly erred in not taking note of the material which has been adverted to above. The order passed by the High Court fails to notice material facts and shows a non-application of mind to the seriousness of the crime and the circumstances referred to earlier which ought to have been taken into consideration.

21 The High Court has erred in not considering material relevant to the determination of whether the accused were to be enlarged on bail. The order of

the High Court enlarging the accused on bail is erroneous and liable to be set aside.

22 There is another reason why the judgment of the learned Single Judge has fallen into error. It is a sound exercise of judicial discipline for an order granting or rejecting bail to record the reasons which have weighed with the court for the exercise of its discretionary power. In the present case, the assessment by the High Court is essentially contained in a single paragraph which reads:

―4. Considering the contentions put-forth by the counsel for the petitioner and taking into account the facts and circumstances of the case and without expressing opinion on the merits of the case, this court deems it just and proper to enlarge the petitioner on bail.

23 Merely recording ―having perused the record‖ and ―on the facts and circumstances of the case‖ does not sub-serve the purpose of a reasoned judicial order. It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The duty of judges to give reasoned decisions lies at the heart of this commitment. Questions of the grant of bail concern both liberty of individuals undergoing criminal prosecution as well as the interests of the criminal justice system in ensuring that those who commit crimes are not afforded the opportunity to obstruct justice. Judges are duty bound to explain the basis on which they have arrived at a conclusion.

24 In Kalyan Chandra Sarkar v Rajesh Ranjan13, a two judge Bench of this Court was required to assess the correctness of a decision of a High Court enlarging the accused on bail. Justice Santosh Hegde, speaking for the Court, discussed the law on the grant of bail in non-bailable offences and held:

―11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind.‖

(Emphasis supplied)

25 Where an order refusing or granting bail does not furnish the reasons that inform the decision, there is a presumption of the non-application of mind which may require the intervention of this Court. Where an earlier application for bail has been rejected, there is a higher burden on the appellate court to furnish specific reasons as to why bail should be granted.

26 The perfunctory analysis by the High Court in the present case cannot be sustained. For the reasons indicated above, the appeal is allowed and the order of the High Court enlarging the first respondent on bail is set aside.

27 The connected appeals also are allowed in terms of the judgment recorded above.


13 (2004) 7 SCC 528


28 Since the accused have been released on bail during the pendency of these proceedings, we order that the bail bonds shall stand cancelled and the five accused shall be taken into custody forthwith. A copy of this judgment shall be forwarded to the Additional Sessions Judge, Chirawa District, Jhunjhunu and the police station concerned to secure compliance.

29 We clarify that the present judgment shall not be construed as the expression of any opinion on the merits of the case at the trial.

J [Dr Dhananjaya Y Chandrachud]

J [Hrishikesh Roy]

New Delhi;

December 5, 2019.

BSES Yamuna Power Ltd. Vs Sh. Ghanshyam Chand Sharma & Anr-05/12/2019

Pension Denied: Even if the first respondent had served twenty years, under Rule 26 of the CCS Pension Rules his past service stands forfeited upon resignation. The first respondent is therefore not entitled to pensionary benefits.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 9076 of 2019

@SLP (C) No. 6553 of 2018

BSES Yamuna Power Ltd. …Appellant

Versus

Sh. Ghanshyam Chand Sharma & Anr. …Respondents

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1. By its order dated 26 May 2017 a Division Bench of the High Court of Delhi upheld the judgement of a Single Judge dated 21 March 2017 granting pensionary benefits to the first respondent. The judgement of the Single Judge directed the appellant to pay pensionary benefits to the first respondent on the ground that he had completed twenty years of service and had ‘voluntarily retired’ and not ‘resigned’ from service. The appellant challenges these findings in the present appeal.

2. The first respondent was appointed as a daily rated mazdoor on 9 July 1968. His services were regularised on the post of a Peon on 22 December 1971. The first respondent tendered his resignation on 7 July 1990, which was accepted by the appellant with effect from 10 July 1990. The first respondent was subsequently denied pensionary benefits by the appellant on two grounds. First, that he had not completed twenty years of service, making him ineligible for the grant of pension. Second, in any case, by resigning, the first respondent had forfeited his past services and therefore could not claim pensionary benefits.

3. The second question of whether by resigning, the first respondent forfeited his past service must be addressed at the outset. If the first respondent‟s resignation resulted in a forfeiture of past service, the question of whether he has completed twenty years of service is rendered irrelevant for such service would stand forfeited. In holding the that the legal effect of the first respondent‟s letter of resignation would amount to „voluntary resignation‟, the Single Judge of the High Court of Delhi relied on the judgement of this Court in Asger Ibrahim Amin v LIC1.

4. In Asger Ibrahim Amin, the appellant had resigned in 1991 after completing twenty-three years of service with the Life Insurance Corporation of India. When the appellant resigned, there existed no provision allowing for voluntary retirement. The Central Government subsequently promulgated the Life


1 (2016) 13 SCC 797


Insurance Corporation of India (Employees) Pension Rules 19952 setting out the conditions to be fulfilled for the grant of pension upon retirement and permitting, for the first time, employees to voluntarily retire after twenty years of service. Under the LIC Pension Rules, pension on retirement was made retrospectively applicable to employees retiring prior to 1995, however, the provisions regarding voluntary retirement were not. The LIC Pension Rules also stipulated that resignation amounted to a forfeiture of past service. In deciding whether the appellant was entitled to pension under the LIC Pension Rules, Justice Vikramajit Sen speaking for a two judge Bench of this Court held:

“16. … [quoting Sheelkumar Jain v New India Assurance Co. Ltd. (2011) 12 SCC 197] The aforesaid authorities would show that the court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement and while construing the statutory provisions, the court will have to keep in mind the purpose of the statutory provisions…

17. The appellant ought not to have been deprived of pension benefits merely because he styled his termination of service as “resignation” or because there was no provision to retire voluntarily at that time. The commendable objective of the Pension Rules is to extend benefits to a class of people to tide over the crisis and vicissitudes of old age, and if there are some inconsistencies between the statutory provisions and the avowed objective of the statute so as to discriminate between the beneficiaries within the class, the end of justice obligates us to palliate the differences between the two and reconcile them as far as possible. We would be failing in our duty, if we go by the letter and not by the laudatory spirit of statutory provisions and the fundamental rights guaranteed under Article 14 of the Constitution of

India.”

(Emphasis supplied)


2 LIC Pension Rules


5. The court in Asger Ibrahim Amin held that despite the use of the term

„resignation‟ in the appellant‟s letter, the court had to independently determine whether the termination of service amounted to a „resignation‟ or a „voluntary retirement‟. As the appellant in Asger Ibrahim Amin had fulfilled the prescribed years of service and, at the time of his resignation there was no provision for voluntary retirement, the Court held that the appellant had in fact „voluntarily retired‟ and not „resigned‟. The LIC Pension Rules only made the provisions on retirement applicable retrospectively and did not make the provisions with respect to voluntary retirement applicable retrospectively. However, in holding that the court must determine whether there existed a case for „voluntary retirement‟ or „resignation‟, the effect of the decision was to apply the provisions on voluntary retirement retrospectively. The Court Vikramajit Sen expressly noted this:

“11. … The respondent Corporation has controverted the plea of the appellant that as the relevant date and time viz. 29-1-1991 there was no alternative for him except to tender his resignation, pointing out that he could not have sought voluntary retirement under Regulation 19(2-A) of the LIC of India (Staff) Regulations, 1960. If that be so, the respondent being a model employer could and should have extended the advantage of these Regulations to the appellant thereby safeguarding his pension entitlement. However, we find no substance in the argument of the respondent since Regulation 19(2-A) was, in fact, notified in the Gazette of India on 16-2-1996, that is, after the pension scheme case into existence with effect from 1-11-1993.

(Emphasis supplied)

6. In the present case, the Single Judge of the High Court of Delhi relied on the decision in Asger Ibrahim Amin to hold that the first respondent was entitled to pensionary benefits. The Single Judge noted that the first respondent had completed more than twenty years of service and would have been eligible for pension upon voluntary retirement. Therefore, despite the first respondent using the term „resignation‟, on an independent determination of the facts of the case, the Single Judge held that he had in fact „voluntarily resigned‟ from service‟.

7. Mr C U Singh, learned Senior Counsel for the appellant, brought to our attention that the correctness of the court‟s approach in Asger Ibrahim Amin had been called into question by a co-ordinate bench of this Court in Senior Divisional Manager, LIC v Shree Lal Meena3 (“Shree Lal Meena I”), which referred the matter to a larger Bench of this Court. Thereafter, a three judge Bench of this Court was constituted and delivered a judgement in Senior Divisional Manager, LIC v Shree Lal Meena4 (“Shree Lal Meena II”) overruling the view taken in Asger Ibrahim Amin. Both these judgements have been placed on the record.

8. The facts in Shree Lal Meena I and Shree Lal Meena II were analogous to those in Asger Ibrahim Amin. The respondent employee had resigned after completing twenty years of service. The court was called upon to determine whether the respondent‟s „resignation‟ amounted to a forfeiture of his past service

disentitling him from pension or was in fact „voluntary retirement‟. Justice Dipak Mishra (as the learned Chief Justice then was) speaking for a two judge Bench of this Court in Shree Lal Meena I observed:

“28. … Needless to say, resignation has the effect of termination of an employee. Voluntary retirement though has the effect of termination of an employee yet it has different


3 (2015) 17 SCC 43

4 (2019) 4 SCC 479


consequences. In the former case, the ex-employee could not be entitled to pension, whereas in case of voluntary retirement, the latter one, the employee would be entitled to pension depending upon the terms postulated in the regulations or rules or the scheme. Rule 23 of the 1995 Rules specifically provides that on resignation, dismissal, removal, termination or compulsory retirement, the employee shall forfeit past service and he shall not qualify for pensionary benefit. Thus, resignation given under the 1995 Rules would not entitle an employee to get pension.

29. … In Asger Ibrahim Amin, retrospectivity has been given to Rule 31 [Pension on voluntary retirement], and for the said purpose the amendment to the 1960 Regulations, specifically Regulation 19(2-A) has been taken recourse to. In our view, when Rule 31 covers the field of voluntary retirement and does not make it retrospective, there being a real difference between resignation and retirement, it is not seemly to read the amended Regulations to the Rules to make the same retrospective. Therefore, we are unable to concur with the view expressed in Asger Ibrahim Amin.”

(Emphasis supplied)

9. The court in Shree Lal Meena I took the view that the provision with respect to pension on voluntary retirement (Rule 31) was not applicable retrospectively because the relevant provision had not been enacted with retrospective effect. Crucially, the Court noted that by making the provision on voluntary retirement applicable retrospectively, and making a determination in the facts of each case whether an employee had „resigned‟ or „voluntarily retired‟, the decision in Asger Ibrahim Amin obliterated the distinction between resignation and retirement. The court noted that there is a “real difference between resignation and retirement”. They cannot be used interchangeably, and the court cannot substitute one for the other merely because the employee has completed the requisite number of years to qualify for voluntary retirement.

10. In Shree Lal Meena II, upholding the interpretation in Shree Lal Meena I, Justice Sanjay Kishan Kaul speaking for the three judge Bench, noted that the retrospective application of the provision on voluntary retirement in the LIC Pension Rules would lead to an absurd result:

“19. What is most material is that the employee in this case had resigned. When the Pension Rules are applicable, and an employee resigns, the consequences are forfeiture of service, under Rule 23 of the Pension Rules. In our view, attempting to apply the Pension Rules to the respondent would be a self-defeating argument. As, suppose, the Pension Rules, were applicable and the employee like the respondent was in service and sought to resign, the entire past service would be forfeited, and consequently, he would not qualify for pensionary benefits. To hold otherwise would imply than an employee resigning during the currency of the Rules would be deprived of pensionary benefits, while an employee who resigns when the Rules were not even in existence, would be given the benefit of these Rules.”

(Emphasis supplied)

The Court noted that, if the approach followed in Asger Ibrahim Amin was adopted in interpreting the LIC Pension Rules, an employee who resigned after the enactment of the rules would not be entitled to pensionary benefits but an employee who had resigned when the rules were not in force, but had completed the prescribed period of service for voluntary retirement, would be entitled to pensionary benefits. Such an outcome could not be countenanced and would render nugatory the provision which stipulated that upon resignation, past service stood forfeited.

11. The Court in Shree Lal Meena II elucidated the distinction between resignation and voluntary retirement in the following terms:

“22. … [quoting RBI v Cecil Dennis Solomon (2004) 9 SCC 461] In service jurisprudence, the expressions “superannuation”, “voluntary retirement”, “compulsory retirement” and “resignation” convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering the prescribed period of qualifying service. Another fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in the case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary.”

The above observations highlighted the material distinction between the concept of resignation and voluntary retirement. The Court also observed that while pension schemes do form beneficial legislation in a delegated form, a beneficial construction cannot run contrary to the express terms of the provisions:

“26. There are some observations on the principles of public sectors being model employers and provisions of pension being beneficial legislations (see Asger Ibrahim Amin v LIC). We may, however, note that as per what we have opined aforesaid, the issue cannot be dealt with on a charity principle. When the legislature, in its wisdom, brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and conditions, aspects which are excluded cannot be included in it by implication.”

The view in Asger Ibrahim Amin was disapproved and the court held that the provisions providing for voluntary retirement would not apply retrospectively by implication. In this view, where an employee has resigned from service, there arises no question of whether he has in fact „voluntarily retired‟ or „resigned‟. The decision to resign is materially distinct from a decision to seek voluntary retirement. The decision to resign results in the legal consequences that flow from a resignation under the applicable provisions. These consequences are distinct from the consequences flowing from voluntary retirement and the two may not be substituted for each other based on the length of an employee‟s tenure.

12. In the present case, the first respondent resigned on 7 July 1990 with effect from 10 July 1990. By resigning, the first respondent submitted himself to the legal consequences that flow from a resignation under the provisions applicable to his service. Rule 26 of the Central Civil Service Pension Rules 1972 states that:

“26. Forfeiture of service on resignation

(1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority, entails a forfeiture of past service…”

Rule 26 states that upon resignation, an employee forfeits past service. We have noted above that the approach adopted by the court in Asger Ibrahim Amin has been held to be erroneous since it removes the important distinction between resignation and voluntary retirement. Irrespective of whether the first respondent had completed the requisite years of service to apply for voluntary retirement, his was a decision to resign and not a decision to seek voluntary retirement. If this court were to re-classify his resignation as a case of voluntary retirement, this would obfuscate the distinction between the concepts of resignation and


5 CCS Pension Rules


voluntary retirement and render the operation of Rule 26 nugatory. Such an approach cannot be adopted. Accordingly, the finding of the Single Judge that the first respondent „voluntarily retired‟ is set aside.

13. We now turn to the question of whether the first respondent had completed twenty years in service. During the present proceedings, our attention was drawn to the fact that the first respondent had applied for voluntary retirement on 14 February 1990. By a letter dated 25 May 1990 the appellant denied the first respondent‟s application for voluntary retirement on the ground that the first respondent had not completed twenty years of service. It was thus urged that the appellant‟s decision to deny the first respondent voluntary retirement was illegal as the first respondent had completed twenty years of service.

14. This argument cannot be accepted. Even if he was denied voluntary retirement on 25 May 1990, the first respondent did not challenge this decision but resigned, on 7 July 1990. The denial of voluntary retirement does not mitigate the legal consequences that flow from resignation. No evidence has been placed on the record to show that the first respondent took issue with the denial of voluntary retirement between 25 May 1990 and 7 July 1990. To the contrary, in the legal notice dated 1 December 1992 sent by the first respondent to the appellant, the first respondent admitted to having resigned. The first respondent‟s writ petition was instituted thirteen years after the denial of voluntary retirement and eventual resignation. In the light of these circumstances, the denial of voluntary retirement cannot be invoked before this Court to claim pensionary benefits when the first respondent has admittedly resigned.

15. On the issue of whether the first respondent has served twenty years, we are of the opinion that the question is of no legal consequence to the present dispute. Even if the first respondent had served twenty years, under Rule 26 of the CCS Pension Rules his past service stands forfeited upon resignation. The first respondent is therefore not entitled to pensionary benefits.

16. For the above reasons, we accordingly allow the appeal and set aside the impugned order of the High Court of Delhi dated 26 May 2017. There shall be no order as to costs.

J [Dr Dhananjaya Y Chandrachud]

J [Hrishikesh Roy]

New Delhi;
December 5, 2019.