Cannot brand police force as biased during riots,‘Incorrect To Say Police Hounds Minorities’ - SC

The Supreme Court has rejected a five-decade-old perception built on the basis of several reports of Commissions of Inquiry that during communal violence the police were generally biased against minority community and arrested victims instead of assailants.

“No one can perhaps dispute that in certain cases such aberrations may have taken place. But, we do not think that such instances are enough to denounce or condemn the entire force, for we ought to know that for every life lost in a violent incident the force may have saved ten, who may have but for timely intervention been similarly lost to mindless violence,” said a bench of Justices Dalveer Bhandari, T S Thakur and Dipak Misra.

The judgment came in a case in which the apex court bench of Justices S B Sinha and H S Bedi had split over the guilt of the accused. Justice Sinha had acquitted the accused in an alleged riot case, where three persons from minority community, including two children, were murdered after the house was set ablaze in December, 1992, in a village in Assam. Justice Bedi had cited several reports of Commissions of Inquiry to point out that in riot situations the police generally acted in a biased manner and refused to promptly register FIRs and said benefit of delay in registering FIRs could not be given to the accused. The courts take police’s failure to register FIR in time and its inability to explain such delay as fatal to the prosecution case.

With the split verdict, the case was referred to the three-judge bench headed by Justice Bhandari, which agreed with Justice Sinha’s judgment.

Writing the judgment for the three-judge bench, Justice Thakur said extracts from reports of Commission of Inquiry in Justice Bedi’s judgment gave an impression that the police on the whole was insensitive to the fears, concerns, safety and security of minority communities.

The bench said: “It will indeed be a sad day for the secular credentials of this country if the perception of the minority communities about the fairness and impartiality of the police force were to be what the reports are suggestive of. And yet it may not be wholly correct to say that the police deliberately make no attempt to prevent incidents of communal violence or that effort to protect the life and property of the minorities is invariably half hearted or that instead of assailants the victims are picked up by the police.”

It said, “while the police force may have much to be sorry about and while there is always room for improvement in terms of infusing spirit of commitment, sincerity and selfless service towards the citizens, it cannot be said that the entire force stands discredited.

SHANKER SINGH v. NARINDER SINGH & ORS. [2011] INSC 1204 (15 December 2011)

Judgement

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3249 OF 2005

Shanker Singh ... Appellant

Versus

Narinder Singh & Ors. ... Respondents

J U D G E M E N T

H.L. Gokhale J.

This appeal by special leave under Article 136 of the Constitution of India, seeks to challenge the judgment and order dated 8.4.2003 rendered by a learned Single Judge of the Punjab and Haryana High Court, in Civil Regular Second Appeal No. 1338/1983. The learned Single Judge has allowed the said second appeal by the respondent Nos. 1 and 2 (contesting respondents and original plaintiffs), who had filed a suit for specific performance of an agreement entered into with the appellant (original defendant No. 1). Although various questions of law are sought to be raised in this appeal, the relevant questions for our determination are mainly two viz. (a) whether the High Court has erred in applying the provisions of Sections 12, 14 and 20 of the Specific Relief Act 1963 (hereinafter referred as `the act' for short), and (b) whether the agreement in question being vague in nature was incapable of being performed? Facts leading to this present appeal are as follows:-

2. On 12.1.1977 the appellant herein, a resident of Village Dera Saidan entered into an agreement to sell certain property with the respondent No. 1, a resident of Dera Mainda, both villages being in Tehsil Sultanpur, Distt. Kapurthala of State of Punjab. The property to be sold consisted of two parts viz. agricultural land, and a house property. The Agricultural lands were bearing Khasra nos. 25/21/1-1/11-19, 26//24/6-11, 10/8-0, 12/5-8, 19/6-13, 20/8-0, 25//5/8-0, 15/8-0, 16/8-0, 17-8-0, 18/6-14, 21/2/5/7, 22/5-14, 23/8-0, 24/8-0, 25/7-18, 26/2-0, 34//2/6-14, 25//13/3-13.

3. The relevant clause of the agreement stated as follows:- "Whereas the first party is the owner of = share in 65-13 and the total area of the first party is 92-K-17M and the remaining one house in the abadi Dera Saidan bounded by the custodian on the east, Kartar Singh on west, Pahar- passage on the south and the = share belongs to the wife of the first party namely Pritam Kaur. Now I am in need of purchasing property and therefore, now I am executing this writing in my full senses and dealing to sell the = share in lands measuring 92K-17M along with motor, bore, passage, fan and water pump fitted with engine and without engine along with the place for placing garbage including shamlat and including passage and all the rights which vest in Pritam Kaur and also execute this deal for sale on behalf of Pritam, with the party of the 2nd part for a total consideration of Rs. 1,24,500/- and I have received a sum of Rs. 28,000/- in cash as advance money in front of the witnesses. The purchaser will get the registry executed on 25th day of Magh 2034 and the possession will be handed over at the time of registry."

It was also agreed that if the appellant violated the terms of the agreement, then the respondents were entitled to the recovery of Rs. 28,000/- as earnest money and Rs. 28,000/- as damages, the total coming to Rs. 56,000/. It was further agreed that if there was any addition or decrease in the area agreed to be sold belonging to appellant, the price of the same was to be adjusted accordingly.

4. It so transpired, that on the agreed date of registration the appellant did not turn up at the office of the Sub-Registrar, and hence the respondent gave a notice to the appellant to execute the sale deed. The appellant did not respond, and therefore the respondent No. 1 filed Suit No. 21/1978 in the Court of Sub Judge 1st Class, Sultanpur Lodhi for the specific performance of the agreement. The wife of Shanker Singh, Pritam Kaur was joined as defendant No.2. (She is reported to have expired in 1997). The other co-sharers of the land had sold their land in dispute in favour of one Joginder Kaur and three others who were joined as defendant Nos. 3 to 6 (Respondent Nos. 4 to 7 in the Civil Appeal).

5. The appellant raised various defences. Firstly he denied having entered into the agreement, and then he claimed of having received only Rs. 8,000/- and not Rs. 28,000/- as earnest money. Thereafter, he contended that he did not have the authority to enter into the agreement to sell = share in the house property which belonged to his wife. Lastly he contended that he alongwith his two minor sons Amrik Singh and Balbinder Singh formed a Hindu Undivided Family (HUF), and that he could not sell the coparcenery property except in the case of legal necessity and for the benefit of the family.

6. The Trial Court framed the following issues:

1) Whether the agreement in question was executed by Shanker Singh defendant in his own behalf and on behalf of defendant No. 2 for consideration? 2) Whether Shanker Singh was competent to enter into agreement on behalf of defendant No. 2? 3) Whether the property in suit is the co-parcenary property as alleged in para No. 1 (on merits) of the written statement filed by defendants No. 1 & 2? 4) Whether the plaintiffs have been ready and willing to perform their part of the agreement? 5) Whether defendant No. 1 has committed breach of the agreement? 6) Whether the plaintiffs are entitled for specific performance of the amount claimed? 7) Relief.

7. The respondent examined himself, the writer of the agreement and one of the witnesses of the agreement to prove the document of sale. The Trial Court held on issue No. 1 that the evidence of the writer of the agreement and that of the attesting witness was reliable, and that the earnest money of Rs. 28,000/- had in fact been paid. The agreement in question was therefore proved to be a duly executed document. This finding has been left undisturbed in the first appeal as well as in the second appeal.

8. As far as the second issue with respect to the competence of the appellant to enter into the agreement on behalf of his wife is concerned, although the wife of appellant Smt. Pritam Kaur did file a separate written statement, she did not enter into the witness box. The Trial Court therefore, held that an adverse inference will have to be drawn that she had given such an authority to her husband to sell her property. It further held that when Shanker Singh had agreed to sell his entire land, there was no logic on his part to retain the house, when he alongwith his wife had decided to shift to some other place after purchasing some other property as is evidenced from the agreement.

9. As far as issue No. 3 is concerned, the appellant contended that he had purchased the land in dispute from the proceeds of the sale of his ancestral land at village Nihaluwal, which ancestral land belonged to his father Lachhman Singh. He produced documents which showed that he as well as his brother Puran Singh and his sisters had sold their lands at village Nihaluwal. However, the appellant could not prove that the land in dispute was purchased from the proceeds of the sale of the land which came to his share from his father. The learned Single Judge noted that in any case the property in dispute was not one inherited by the appellant from his father. He observed that the land in dispute for being proved to be an ancestral one, must be shown to have been held at one time by the ancestor, and that it has come to the appellant by survivorship. The learned Trial Judge therefore held that the disputed land could not be held to be a co-parcenery property wherein the minors had any share. The burden that the disputed land, was a co-parcenery property was on the appellant, and he had failed to discharge the same.

10. The Trial Judge held that the respondents were of course ready and willing to perform their part of agreement, and it is the appellant who had failed to discharge his obligation. The learned Judge therefore decreed the suit for specific performance by his judgment and order dated 20.2.1980.

11. The appellant herein challenged this judgment in Civil Appeal No. 62 of 1980 (which appears to have been numbered subsequently as Civil Appeal No. 92 of 1981). The learned Additional District Judge who heard the appeal held that as far as the agreement is concerned, the same had been duly executed, and that the appellant had received the amount of Rs. 28,000/- as earnest money. As far as the issue with respect to the interest of the minors is concerned, he held that for proving the property to be ancestral, the appellant had to show that the land in Village Nihaluwal was originally held by his father Lachhman Singh, and it was the same land which was sold by him and those proceeds had led to the purchase of the land at Dera Saidan. The learned Judge however, noted that no documentary evidence of holding of Lachhman Singh with respect to the land at Nihaluwal had been produced, nor was there any revenue entry of the name of Lachhman Singh in the disputed land at Dera Saidan. Hence the disputed land could not be held to be co-parcenery property.

12. The First Appellate Court however found fault with the respondents' claim on two counts. Firstly, it noted in para 6 of its judgment that `although it has not been made clear in the agreement, it appears that Puran Singh, (the brother of the appellant) was the owner of the other = share in the house as Puran Singh and Shanker Singh had purchased their land jointly in equal shares in Village Dera Saidan.' There was no dispute that = share of the house was owned by Pritam Kaur, wife of the appellant. She had filed a written statement opposing the decree. Therefore, in the same paragraph the court subsequently observed `it has already been held that even in respect of half the share in the house, Shanker Singh, defendant No. 1 had no authority to sell the same and the plaintiffs have no right to claim a decree for the same.' The Court therefore held by its judgment and order dated 23.2.1983 that the appellant could not sell, or agree to sell the property of his wife without her written consent, and therefore the agreement was incapable of being performed in respect of the house.

13. The second count on which the First Appellate Court found the claim of the respondents to be incapable of acceptance was that though the agreement provided for the sale of 92 Kanals and 17 Marlas of land, it was actually found to be 94 Kanals and 16 Marlas (i.e. 1 Kanal and 19 Marlas in excess). After examining the evidence on record, the Court observed as follows:- "......Now in the agreement Ex. P.1 the consideration of the whole property has been fixed at Rs. 1,24,500/- and the consideration for the house has not been determined separately. Again, the agreement provides for the sale of 92 Kanals 17 Marlas of land and at the end it has been added that if any land was found to be in excess or deficient, then the consideration would be increased or decreased correspondingly. Now, in actual fact it has been found that the holding of Shanker Singh is 94 Kanals 16 Marlas. However, in the agreement no separate consideration for the land has been given nor is the rate of the sale given and it is not possible to determine as to what should be the cost of the excess land of 1 Kanals 10 Marlas. Had the price of the land been mentioned separately, it could have been possible to work out the price of the excess area by mathematical calculation but as the agreement stands this is not possible....."

It was obvious that such an excess share of land could not be segregated. The court therefore, held that the whole of the agreement was incapable of specific performance. Hence it set aside the decree of specific performance. The Court found fault with the appellant also for entering into the agreement for sale of = share in the house belonging to his wife without any authority. It, therefore, directed refund of the earnest money of Rs. 28,000/-.

14. The respondents challenged the judgment of the First Appellate Court by filing a Regular Second Appeal No. 1338 of 1983 in the High Court. However, having noted the finding of the First Appellate Court that Smt. Pritam Kaur had = share in the house property, and it could not be sold by the appellant herein, and also since the land was found to be in excess by 1 Kanal and 19 Marlas, the respondents submitted in the High Court that they were ready to give up the claim for = the share of Smt. Pritam Kaur in the house, and were also ready to restrict themselves to the purchase of land of 92 Kanals and 17 Marlas as per the agreement, and nothing more. The order passed at the time of admission of the second appeal reads as follows:- " Dt. The 19th October, 1983.

Present The Hon'ble Mr. Justice J.M. Tandon For the appellant :- Mr. Anand Swaroop, Sr. Advocate with Mr. Sanjiv Pabbi, Adv. For the respondents:- Mr. H.S. Kathuria, Adv. For Res. No. 1 and 2 Order Mr. Sanjiv Pabbi, learned counsel for the appellants, states that the appellants are prepared to pay full consideration of Rs. 1,24,000/- as stipulated in the agreement for the purchase of the land and the share of Shanker Singh respondent in the house. Says further that the appellants will not press for the transfer of half share of the house which is owned by Pritam Kaur, wife of Shanker Singh.

Admitted.

Sd/- J.M. Tandon Judge"

15. The High Court therefore, framed the substantial questions of law as follows:- "Whether the plaintiffs are entitled to specific performance of the agreement in respect of valid part of the agreement on payment of the entire sale consideration in terms of Section 12 of Specific Relief Act, 1963."

It was submitted on behalf of the respondents herein that they were entitled to relinquish the part of the agreement which was not enforceable, and the same was permissible under Section 12 (3) of the Act. They relied upon reported in [1953] INSC 82; AIR 1954 SC 165 to the effect that such an relinquishment can be made at any stage of the proceedings. This proposition of a Bench of three Judges in Kalyanpur Lime Works (supra) has been reiterated by this Court in SCC 173. The learned Judge hearing the second appeal accepted this submission, and by his impugned judgment and order allowed the second appeal, and decreed the suit filed by the respondents for specific performance for agriculture land admeasuring 92 Kanals and 17 Marlas after recording the statement of the counsel for the respondents that they were relinquishing that part of the agreement which was not capable of being performed.

16. Mr. Venkataramani, learned senior counsel appearing for the appellant assailed the impugned judgment on various grounds, as against which Mr. Vishwanathan, learned senior counsel appearing for the respondents defended the judgment as a proper one in the facts of the case. Amongst other submissions, it was contented on behalf of the appellant that minors' share could not have been sold without the permission of the Court in view of the provision of Section 8 (2) of the Hindu Minority and Guardianship Act, 1956. However in view of the concurrent findings as recorded all throughout in the present case, one cannot say that the minor sons of the appellant had any share in the concerned property which required the permission of the Court for its sale. It is, therefore, not possible to accept this submission.

17. It was then submitted that the agreement was incapable of being implemented as rightly held by the Additional District Judge, and that the High Court had erred in its application of the provisions of Section 12, 14 and 20 of the act. Firstly, this was on the ground that there was no specific reference to the price of the land per Kanal or per Marla as held by the Additional District Judge. Secondly, it was submitted that the relinquishment was not unambiguous. The respondents had offered to give up their claim for such excess land, but it was not possible to state that the claim was being given up with respect to a particular parcel of land bearing a specific Khasra number. The agreement was vague in nature and since the proposed relinquishment was also ambiguous, the agreement was incapable of being performed. Consideration of the rival submissions

18. In this connection, we may refer to the relevant provisions of the Act. Section 12(3) of the Act permits a party to an agreement to relinquish a part of the agreement which is not enforceable. However, it should be possible to identify and demarcate that part of the agreement which is not to be enforced. We must also keep in mind the provision of Section 14 of the Act which deals with contracts which are not specifically enforceable, and Sub- Section 1 (b) thereof includes therein a contract which runs into minute and numerous details, as is seen in the present case. In this connection, we must as well refer to Section 20 (1) of the Act which reads as follows:- "Section 20. Discretion as to decreeing specific performance - (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal."

19. Damages and specific performance are both remedies available upon breach of obligations by a party to the contract. The former is considered to be a substantial remedy, whereas the latter is of course a specific remedy. It is true that explanation (i) to Section 10 of the Act provides that unless and until the contrary is proved, the Court shall presume that breach of contract to transfer immovable property cannot be adequately relieved by compensation in money. However, this presumption is not an irrebuttable one. That apart, for a specific performance of a contract of sale of immovable property, there must be certainty with respect to the property to be sold. As held by this Court in para "18. The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all............."

20. Mr. Vishwanathan, learned senior counsel for the respondents submitted that the relinquishment of a part of the agreement was permissible. As far as the propositions of law concerning relinquishment as canvassed by the respondents are concerned, there is no difficulty in accepting the same. However, the relinquishment has to be unambiguous. As held by this Court in seeking part performance must unambiguously relinquish all claims to performance of remaining part of the contract. In the present case the offer of relinquishment by the respondents cannot be said to be an unambiguous one, and it will be difficult to decide as to which portion of the land is to be segregated to be retained with the appellant, and which portion is to be sold. Firstly, this is because as rightly noted by the Additional District Judge, the agreement does not specifically mention the price of the land, and in the proposed relinquishment, the respondents have not stated as to which portion of land (admeasuring 1 Kanal and 19 Marlas) they were agreeable to retain with the appellant. Secondly, in the agreement there is also a mention of `a motor, bore, passage, fan and water pump fitted with engine and without engine along with the place for placing garbage including shamlat' amongst the properties which were being sold. It is not on record as to which parcel of land is having all these features. A question will therefore arise as to with whom such a parcel of land is to be retained. Obviously, a segregation of the land in dispute into two portions will be difficult.

21. In the present case there is one more difficulty viz. with respect to the relinquishment concerning the house. The First Appellate Court had categorically observed in para 6 of its judgment as quoted above, that the brother of the appellant, Puran Singh appeared to be the owner of the other = share of the house, and the remaining = share was in the name of Pritam Kaur, and that Shanker Singh did not have any authority to sell it. The judgment of the High Court does not show that this finding had been challenged in the Second Appeal. Nor was any submission made in this behalf before this Court. What the respondents offered was to give up the claim for the share of Pritam Kaur, and also the claim for the excess land of 1 Kanal and 19 Marlas which was accepted by the High Court in its impugned judgment. The respondents, however, claimed to retain the alleged = share of Shanker Singh, as can be seen from the order dated 19.10.1983 which is passed at the time of admission.

22. Thus, the respondents made a statement at the admission stage that they were ready to pay the full consideration for the land as stipulated in the agreement, and for the share of Shanker Singh in the house. This order dated 19.10.1983 records that the respondents were ready to give up their claim for = the share of the house owned by Pritam Kaur, but maintained the claim for the share of Shanker Singh in the house. As against that it appears from the judgment of the First Appellate Court, that Shanker Singh did not have any such share in the house. His wife had = share, and his brother Puran Singh had = share. In the teeth of this finding of the First Appellate Court, which is neither challenged nor reversed by the High Court, the proposed relinquishment cannot be said to be a correct and unambiguous one. It does not alter the scenario and the agreement continues to remain incapable of performance. In any case it is not clear as to how such an agreement could be acted upon.

23. Therefore, for the reasons stated above, we have to hold in the peculiar facts and circumstances of this case that inspite of the offer of relinquishment made by the respondents herein, the specific performance of the agreement cannot be granted, solely on the ground that it is incapable of being performed. We have also to hold that the High Court erred in applying the provisions of Sections 12, 14 and 20 of the Act to the facts of the present case and in exercising its discretion, since this was not a case for specific performance. We have therefore to allow this appeal and set-aside the order passed by the High Court in Regular Second Appeal No. 1338 of 1983. The suit filed by the respondents will have to be dismissed.

24. We have however to note that the respondents had paid the earnest money of Rs. 28,000/- at the time of entering into the agreement way back on 12.1.1977 i.e. nearly 35 years ago. The respondents will therefore have to be compensated adequately. On the question of the appropriate compensation, it was submitted by Mr. Venktaramani, the learned senior counsel for the appellant that the agreement was made at a difficult time in the social life of Punjab for a throw away price. However, no evidence is placed on record to that effect. He then pointed out that the appellant had contended in the lower courts that respondents were influential people. Even so, it cannot be ignored that inspite of the agreement, the land has remained with the appellant all through out in view of the orders passed by the courts from time to time, due to which he has benefited. The specific performance of the agreement is being denied basically because of the finding that the agreement was incapable of being performed inspite of the offer of relinquishment. It is an adage that money doubles itself in ten years, and on that basis the amount of Rs. 28,000/- with an appropriate interest will come to atleast Rs. 3,50,000/-. If the land was with the respondents, they would have earned much more. Having seen this position, Mr. Venktaramani has fairly left it to the Court to decide an adequate amount to be paid to the respondents by way of compensation and in lieu of specific performance of the concerned agreement. Accordingly, having considered all the relevant aspects, we are of the view that to meet the ends of justice, the appellant should be directed to pay the respondents an amount of Rs. 5,00,000/- which will be inclusive of the earnest money with due return thereon, and compensation.

25. We, therefore, allow this appeal and set-aside the judgment and order dated 8.4.2003 passed by the High Court in Civil Regular Second Appeal No.1338/1983, as well as the one dated 20.2.1980 rendered by the Sub Judge at Sultanpur Lodhi in Suit No.21/1978. The suit shall stand dismissed. There will be no order as to costs. However, the appellant is hereby directed to pay an amount of Rs. 5,00,000/- to the respondents which amount shall be paid in any case by the end of March, 2012.

YOGRAJ INFRAS.LTD. v. SSANG YONG ENGINEERING & CONSTRN.CO.LTD. [2011] INSC 1205 (15 December 2011)

Judgement

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION INTERLOCUTORY APPLICATION NO.3 OF 2011 IN CIVIL APPEAL NO.7562 OF 2011

YOGRAJ INFRASTRUCTURE LTD. ... APPELLANT

V/S.

SSANGYONG ENGINEERING

O R D E R

ALTAMAS KABIR, J.

1. Interlocutory Application No.3 of 2011 has been filed by SSANGYONG Engineering & Construction Company Limited in disposed of Civil Appeal No.7562 of 2011, seeking clarification and correction of certain clerical errors in the judgment passed by this Court on 1st September, 2011, under Order XIII Rule 3 of the Supreme Court Rules, 1966.

2. Mr. Dharmendra Rautray, learned Advocate-on-Record, who had earlier appeared for SSANGYONG Engineering & Construction Company Limited, submitted that in paragraph 5 of the aforesaid judgment it had been mentioned that his clients had filed an application before the Sole Arbitrator on 5th June, 2010, for interim relief under Section 17 of the Arbitration and Conciliation Act, 1996. Mr. Rautray pointed out that the said application had been made not under Section 17 of the above Act, but under Rule 24 of the SIAC Rules and the same would be evident from the application made before the sole Arbitrator in SIAC Arbitration No.37 of 2010, by the Respondent, being Annexure-B to the present application.

3. Mr. Rautray then submitted that through inadvertence, in paragraph 35 of the judgment, it has been indicated that there was no ambiguity that the SIAC Rules would be the Curial law of the arbitration proceedings and that the same had been subsequently clarified in paragraph 37, wherein while indicating that the arbitration proceedings would be governed by the SIAC Rules as the Curial law, which included Rule 32, which made it clear that where the seat of arbitration is Singapore, the law of the arbitration under the SIAC Rules would be the International Arbitration Act (Cap. 143A, 2002 Ed, Statutes of the Republic of Singapore). Mr. Rautray submitted that it was a clear case of inadvertence in paragraph 35 that needs to be clarified by indicating that the Curial law is the International Arbitration law of Singapore and not the SIAC rules.

4. It was also pointed out that in paragraph 36 of the judgment in the sentence beginning with the words "In Bhatia International (supra)...", it had been indicated that while considering the applicability of Part I of the 1996 Act to arbitral proceedings where the seat of arbitration was in India, this Court was of the view that Part I of the Act did not automatically exclude all foreign arbitral proceedings or awards. Mr. Rautray submitted that as would be evident from reading the judgment as a whole, this Court had intended to indicate that where the seat of arbitration was "outside" and not "in" India, the said portion of the sentence should read "where the seat of arbitration was outside India".

5. It was lastly submitted by Mr. Rautray that in paragraph 4 of the judgment it had been mentioned that an application had been filed by the Appellant under Section 9 of the 1996 Act before the District and Sessions Judge, Narsinghpur, Madhya Pradesh, whereas such an application had been made by the Respondent.

6. Mr. Rautray submitted that the aforesaid clarification and corrections are required to be made in the final judgment.

7. However, on behalf of Yograj Infrastructure Limited it was urged that except for the clarification sought for with regard to the Rules applicable to the arbitral proceedings, the other clarifications could be made.

8. Having regard to the submissions made on behalf of the respective parties, we are inclined to agree with Mr. Rautray that the corrections and clarifications sought for have to be allowed. In particular, the observations made in paragraphs 35 and 37, if read together, indicate that, although, when the seat of arbitration was in Singapore, the SIAC Rules would apply, the same included Rule 32 which provides that it is the International Arbitration Act, 2002, which would be the law of the arbitration. Accordingly, it is clarified that while mention had been made in paragraph 35 that the Curial law of the arbitration would be the SIAC Rules, what has been subsequently indicated in paragraph 37 of the judgment is that International Arbitration Act of Singapore would be the law of the arbitration.

9. The judgment and order dated 1st September, 2011, be read and understood on the basis of the corrections and clarifications hereby made in this order.

10. The interlocutory application filed on behalf of SSANGYONG Engineering & Construction Company Limited, is allowed and disposed of accordingly.

................................................J.

(ALTAMAS KABIR)

................................................J.

GAYTRI BAJAJ v. JITEN BHALLA [2011] INSC 1206 (16 December 2011)

Judgement 

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (C) Nos. 35468-35469 OF 2009

Gaytri Bajaj .... Petitioner (s)

Versus

Jiten Bhalla .... Respondent(s)

O R D E R

1) The petitioner-wife and the respondent-husband were married on 10.12.1992 and two daughters were born out of the said wedlock. The elder daughter was born on 20.08.1995 and the younger daughter on 19.04.2000. It is the grievance of the petitioner-wife that the Additional District Judge by order dated 03.06.2003 passed a decree of divorce within eight days from the presentation of the first and second Motions under Section 13-B(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act"). The petitioner-wife has 1 filed a suit for declaration on 01.02.2006 seeking a declaratory decree that the respondent has obtained a decree by fraud.

2) On 10.10.2007, the respondent-husband filed an appeal under Section 28 of the Act in the High Court of Delhi at New Delhi. The petitioner-wife filed cross-objections to the said appeal on 07.11.2007. The learned single Judge of the High Court, by order dated 08.09.2008, allowed the appeal filed by the respondent-husband without deciding and adjudicating on the cross-objections filed by the petitioner-wife. Being aggrieved by the order of the learned single Judge, the respondent-wife filed a review petition on 13.10.2008. The said review petition was also dismissed on 10.07.2009 by the learned single Judge of the High Court. Both the said orders were impugned in the present special leave petitions.

3) By order dated 14.12.2009, this Court issued notice to the respondent-husband.

4) The short question which falls for consideration in these SLPs for the present is with regard to the custody of the two children.

2 5) During the course of hearing, at one stage, considering the issue raised, namely, relating to the custody of children, both being daughters, at the request of counsel for both sides, we decided to interact with the children as well as their parents, namely, petitioner-wife and respondent-husband in our Chambers to find out the actual friction in order to arrive at the possibility of any amicable settlement. Pursuant to the same, both parties including their children were present before us and a detailed interaction was held with the children and their parents separately. In the course of interaction, we were able to ascertain the following facts:

a) The date of birth of first daughter is 20.08.1995 and presently she is aged about 17 years. The date of birth of second daughter is 19.04.2000 and presently she is aged about 11 years. Both of them were living with their father and are in his custody and the petitioner-wife had no access to the children or even a brief meeting with them.

b) After interacting with the children separately and putting several questions about their age, education, their future and importance of company of mother as of now, both of them 3 were very clear and firm that they want to continue to live with their father and they do not want to go with their mother. 6) In the aforesaid facts and circumstances, we feel that if the children are forcibly taken away from the father and handed over to the mother, undoubtedly, it will affect their mental condition and it will not be desirable in the interest of their betterment and studies. In such a situation, the better course would be that the mother should first be allowed to make initial contact with the children, build up relationship with them and gradually restore her position as their mother.

7) In a matter relating to the custody of children the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Even the statues, namely, the Guardianship and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956 make it clear that the welfare of the child is a predominant consideration. In a matter of this nature, particularly, when father and mother fighting their case without reference to the welfare of the child, a heavy duty is cast upon the Court to 4 exercise its discretion judiciously bearing in mind the welfare of the child as paramount consideration.

8) In the relevant facts and circumstances of the case, we are convinced that the interest and welfare of the children will be best served if they continue to be in the custody of the father. In our opinion, at present, it is not desirable to disturb the custody with the father. However, we feel that ends of justice would be met by providing visitation rights to the mother. In fact, during the hearing on 12.12.2011, Ms. Indu Malhotra, learned senior counsel for the petitioner-wife represented that if such visitation rights, namely, visiting her children once in a fortnight is ordered that would satisfy the petitioner-wife. Learned senior counsel also represented that if the said method materializes, the petitioner-wife is willing to withdraw all civil and criminal cases filed against the respondent-husband which are pending in various courts. 9) Mr. Ranjit Kumar, learned senior counsel for the respondent-husband made it clear that this Court is free to pass appropriate interim arrangement if the same is feasible 5 and in the interest of the children. Since both are residing at Delhi, it is desirable to pass appropriate direction for the meeting of the petitioner-wife either in the house of the respondent-husband or in a common place like Mediation Centre of this Court or the High Court. 10) We, accordingly, make the following interim arrangement:

(i) The respondent-husband is directed to bring both daughters, namely, Kirti Bhalla and Ridhi Bhalla, to the Supreme Court Mediation Centre at 10 a.m. on Saturday of every fortnight and hand over both of them to the petitioner-wife. The mother is free to interact with them and take them out and keep them in her house for overnight stay. On the next day, i.e., Sunday at 10 a.m. the petitioner-wife is directed to hand over the children at the residence of the respondent-husband. The above arrangement shall commence from 17.12.2011 and continue till the end of January, 2012.

(ii) The respondent-husbad is directed to inform the mobile number of elder daughter (in the course of hearing, we were informed that she is having separate 6 mobile phone) and also landline number to enable the petitioner-wife to interact with the children.

11) Inasmuch as the petitioner-wife is willing to withdraw all civil and criminal proceedings filed against the respondent- husband, in view of the interim visitation rights being granted to her, we hope and trust that the respondent-husband will cooperate and persuade the children to spend time with their mother as directed above. 7 12) It is also made clear that for any reason if the said visitation is not workable due to the attitude of any of the parties or due to the children, counsel appearing for them are free to mention before this Court for the next course of action.

13) Put up on 03.02.2012.

.................................................

J. (P. SATHASIVAM)

..................................................J.

(J. CHELAMESWAR) NEW DELHI;

DECEMBER 16, 2011.

HELIOS & MATHESON INFORM.TECH.LTD.&ORS v. RAJEEV SAWHNEY & ANR [2011] INSC 1207 (16 December 2011)

Judgement

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CRL.) NO.4606 of 2011

Helios & Matheson Information Technology Ltd. & Ors. ... Petitioners

Versus

Rajeev Sawhney & Anr. ...Respondents

With SPECIAL LEAVE PETITION (CRL.) No.4672 of 2011

Pawan Kumar ...Petitioner

Versus

Rajeev Sawhney & Anr. ...Respondents 

T.S. THAKUR, J.

1. These Special Leave Petitions arise out of an order dated 6th May, 2011, passed by the High Court of Judicature at Bombay in Criminal Revision Application No.441 of 2008 whereby the High Court has set aside order dated 13th August, 2008 passed by the Additional Sessions Judge, Greater Bombay in Revision Applications No.449, 460 and 853 of 2007 and restored that made by the Additional Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai taking cognizance of offences allegedly committed by the petitioners.

2. Respondent No.1, Rajeev Sawhney filed Criminal Complaint No.20/SW/2007 before Additional Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai, alleging commission of offences punishable under Sections 417, 420, 465, 467, 468, 471 read with Section 120B of 2 IPC by the petitioners. The complaint set out the relevant facts in great detail and made specific allegations to the effect that petitioners had entered into a conspiracy to defraud him and for that purpose Shri Pawan Kumar, arrayed as accused No.4 in the complaint, had played an active role apart from fabricating a Board resolution when no such resolution had, in fact, been passed. On receipt of the complaint the Additional Chief Metropolitan Magistrate recorded prima facie satisfaction about the commission of offences punishable under Sections 417, 420, 465, 467, 468, 471, read with Section 120B of IPC, took cognizance and directed issuance of process against the accused persons. Aggrieved by the said order, Revision Petitions No.449, 460, 853 of 2007 were filed by the accused persons before the Additional Sessions Judge, Greater Bombay, challenging the order taking cognizance and the maintainability of the complaint on several grounds. The revision petitions were eventually allowed by the Additional Sessions Judge, Greater Bombay by his order dated 13th August, 2008 and the summoning order set aside. The Additional Sessions Judge came to the conclusion that 3 although the allegations regarding fabrication of a resolution, taken at their face value, made out a prima facie case of fraud against the accused persons yet the minutes of a subsequent meeting allegedly held on 19th July, 2005, a photocopy of which was filed along with Criminal Revision No.460/2007 ratified the resolution allegedly passed on 28th June, 2005. The Court on that premise concluded that no fraud or cheating was made out against the accused persons. The Court observed:

"The question is only in respect of the incident 28/06/2005 if this incident averred in the complaint is taken as it is without any more facts then certainly leads a prima facie case of playing fraud. However, in this case, it is seen from the record that the complainant had meeting on 19/07/2005, the minutes of the meeting are produced at page No.293 in Criminal Revision No.460/2007. This meeting and its minutes are not disputed. The relevant portion of the minutes on 19/07/2005 relevant for our purposes are as under:

"Mr. Rajeev Sawhney has agreed to approve and sign the circular resolution for opening the Bank Account of VMoksha Mauritius with State Bank of Mauritius and obtaining the loan facility for the purposes of receiving the purchase consideration and remittance of the subscription money for the issue of preference shares in favour of VMoksha Mauritius with effect from the time of execution and exchange of the above Undertaking and the modification letter for the Escrow Arrangement."

This ratifies the act of 28/06/2005, therefore the minutes of the meeting which is signed by the 4 complainant himself and accused No.4. Mr. Pawan Kumar and other directors etc. if perused the act of 28/06/2005 is ratified and the complainant thus consented to that act. Therefore, there remained nothing of the cheating to the complainant by the accused." (emphasis is supplied)

3. The Court also found fault with the complainant suppressing the fact of a complaint having been filed before the Additional Chief Metropolitan Magistrate at Bangalore and the alleged non-observance of the provisions of Section 202 of the Cr.P.C.

4. The above order was then challenged by the complainant, Shri Rajeev Sawhney before the High Court of Bombay in Criminal Revision Application No.441 of 2008. The High Court came to the conclusion that the Additional Sessions Judge had fallen in error on all three counts. The High Court noticed that the complaint filed before the IV Additional Chief Metropolitan Magistrate at Bangalore had been quashed by the Karnataka High Court on account of a more comprehensive complaint having been filed before the Additional Chief Metropolitan Magistrate at Mumbai. 5 Consequently, on the date the Additional Chief Metropolitan Magistrate took cognizance of the offence alleged against the accused persons there was no complaint other than the one pending before the said Court. The complainant could not, therefore, be accused of having suppressed any material information from the trial Court to call for any interference by the Sessions Court on that count.

5. As regards the alleged non-observance of the provisions of Section 202 Cr.P.C. the High Court came to the conclusion that the provision of Section 202 Cr.P.C. had been complied with by the Magistrate while taking cognizance and issuing process.

6. On the question of ratification of the resolution allegedly passed on 28th June, 2005, the High Court held that the Sessions Judge was not justified in entertaining a photocopy of the document relied upon by the accused at the revisional stage, placing implicit reliance upon the same 6 and interfering with the on-going proceedings before the Magistrate. The High Court observed:

"The third ground on which the learned Addl. Sessions Judge had allowed the revision of the accused persons and quashed the process was that the acts in dispute were ratified in the meeting dated 19.7.2001. It appears that during the arguments before the Addl. Sessions Judge, a photocopy of a document purporting to be minutes of the meeting of the advisers of the complainant and accused No.4 Pawan Kumar held on 19.7.2005 was produced to show that the parties had approved the act of opening the account in the name of the Company and securing the loan on 28.6.2005. Firstly, this document was produced for the first time before the Addl. Sessions Judge in the revision application. This document could be treated as a defence of the accused persons. That document was not available before the Addl. C.M.M. when he passed the order. Secondly, this document being the defence could not be taken into consideration for the purpose of deciding whether prima facie case is made out for issuing process. The learned Addl. Sessions Judge observed that signature on the document was not disputed. In fact, the stage of proving that document or admitting signature on that document had never arisen. The original document was not before the Court and only a photocopy of the document purporting to be minutes of the meeting was filed and on the basis of such photocopy produced during the revision application by the accused persons, the learned Addl. Sessions Judge jumped to the conclusion that such a resolution was passed and the acts of 28.6.2005 were ratified. In my opinion, it will not be appropriate for the Addl. Sessions Judge."

7. The present Special Leave Petitions assail the correctness of the view taken by the High Court.

7

8. Appearing for the petitioners M/s. K.K. Venugopal and Altaf Ahmed, learned senior counsels strenuously argued that the High Court was not justified in reversing the view taken by the Sessions Judge and in remitting the matter back to the trial Court. We do not think so. The reasons are not far to seek. We say so because the averments made in the complaint when taken at their face value, make out a case against the accused. We have gone through the averments made in the complaint and are of the view that the complaint does contain assertions with sufficient amount of clarity on facts and events which if taken as proved can culminate in an order of conviction against the accused persons. That is, precisely the test to be applied while determining whether the Court taking cognizance and issuing process was justified in doing so. The legal position in this regard is much too well-settled to require any reiteration.

9. Learned counsel for the petitioners made a valiant attempt to argue that the Revisional Court was justified in 8 receiving documents from the accused persons at the hearing of the revision and decide the legality of the order taking cognizance on that basis. Before the High Court a similar contention was raised but has been turned down for reasons that are evident from a reading of the passage extracted by us above. We see no error or perversity in the view taken by the High Court that in a revision petition photocopies of documents produced by the accused for the first time, could not be entertained and made a basis for setting aside an order passed by the trial Court and dismissing a complaint which otherwise made out the commission of an offence. The accused is doubtless entitled to set up his defence before the trial Court at the proper stage, confront the witnesses appearing before the Court with any document relevant to the controversy and have the documents brought on record as evidence to enable the trial Court to take a proper view regarding the effect thereof. But no such document, the genuineness whereof was not admitted by the parties to the proceedings, could be introduced by the accused in the manner it was sought to be done. We may in this regard gainfully refer to the 9 decision of this Court in Minakshi Bala v. Sudhir Kumar and Ors. (1994) 4 SCC 142 where one of the questions that fell for consideration was whether in a revision petition challenging an order framing charges against the accused, the latter could rely upon documents other than those referred to in Sections 239 and 240 of the Cr.P.C. and whether the High Court would be justified in quashing the charges under Section 482 of the Cr.P.C. on the basis of such documents. Answering the question in the negative this Court held that while an order framing charges could be challenged in revision by the accused persons before the High Court or the Sessions Judge, the revisional Court could in any such case only examine the correctness of the order framing charges by reference to the documents referred to in Sections 239 and 240 of the Cr.P.C and that the Court could not quash the charges on the basis of documents which the accused may produce except in exceptional cases where the documents are of unimpeachable character and can be legally translated into evidence. The following passage is, in this regard, apposite:

10 "7. If charges are framed in accordance with Section 240 CrPC on a finding that a prima facie case has been made out -- as has been done in the instant case -- the person arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge-sheet submitted under Section 173 CrPC and documents sent with it did not disclose any ground to presume that he had committed any offence for which he is charged and the revisional court if so satisfied can quash the charges framed against him. To put it differently, once charges are framed under Section 240 CrPC the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence."

10. It is interesting to note that even in the present SLPs the petitioner has filed an unsigned copy of the alleged minutes of the meeting dated 19th July, 2005. We do not think that we can possibly look into that document without proper proof and without verification of its genuineness. There was and is no clear and unequivocal admission on the record, at least none was brought to our notice, regarding the genuineness of the document or its probative value. The complainant-respondent in this petition was also not willing to concede that the document relied upon could 11 possibly result in the ratification of an act which was non est being a mere forgery. At any rate the document could not be said to be of unimpeachable character nor was there any judicial compulsion much less an exceptional or formidable one to allow its production in revisional proceedings or to accept it as legally admissible evidence for determining the correctness of the order passed by the trial Court. That apart whether or not document dated 19th July, 2005, could possibly have the effect of ratifying the resolution allegedly passed on 28th June, 2005 was also a matter that could not be dealt with summarily, especially when the former did not even make a reference to the latter.

11. The alternative contention urged by learned counsel for the petitioners that there was suppression of information by the complainant as regards filing of a previous complaint before the Magistrate at Bangalore is also without any substance. The fact that the complaint previously filed had been quashed by the High Court on 12 account of filing of a comprehensive complaint out of which these proceedings arise is, in our opinion, a complete answer to the charge of suppression. As on the date the Additional Chief Metropolitan Magistrate, Mumbai, took cognizance of the offences in the complaint filed before him no other complaint was pending in any other Court, the complaint before the Magistrate at Bangalore having had been quashed without a trial on merits. Mere filing of a previous complaint could not in the above circumstances be a bar to the filing of another complaint or for proceedings based on such complaint being taken to their logical conclusion. So also the High Court was, in our opinion, correct in holding that there was no violation of the provision of Section 202 Cr.P.C. to warrant interference in exercise of revisional powers by the Sessions Judge.

12. Reliance placed by learned counsel for the petitioners upon the decisions of this Court in Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. (1998) 5 SCC 749 and State of Orissa v. Debendra Nath Padhi 13 (2005) 1 SCC 568 is of no avail. In the former case this Court simply recognized that taking of cognizance is a serious matter and that the magistrate must apply his mind to the nature of the allegations in the complaint, and the material placed before him while issuing process. The complaint in the present case, as noticed earlier, does make specific allegations which would call for a proper inquiry and trial and the magistrate had indeed recorded a prima facie conclusion to that effect. So also the decision in Debendra Nath Padhi (supra) does not help the petitioner. That was a case where the question was whether at the stage of framing of charge, the accused could seek production of documents to prove his innocence. Answering the question in the negative this Court held:

"The law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. No provision in the Code of Criminal Procedure, 1973 (for short the "Code") grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. Satish Mehra case, (1996) 9 SCC 766 holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the accused would mean permitting the accused to 14 adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence."

13. In the result, we see no reason to interfere with the order passed by the High Court in exercise of our jurisdiction under Article 136 of the Constitution of India. The Special Leave Petitions are accordingly dismissed. .....................................J.

(Dr. B.S. CHAUHAN)

.....................................J.

JETHA BHAYA ODEDARA v. GANGA MALDEBHAI ODEDARA & ANR. [2011] INSC 1208 (16 December 2011)

Judgement

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CRL.) No.4010 of 2011

Jetha Bhaya Odedara ...Petitioner

Versus

Ganga Maldebhai Odedara and Anr. ... Respondents

T.S. THAKUR, J.

1. The High Court of Gujarat at Ahmedabad has by its order dated 13th September, 2010 allowed Criminal Misc. -- Application No.9119/2010 and enlarged the respondent, Ganga Maldebhai Odedara on bail under Section 439 of Code of Criminal Procedure. The present Special Leave Petition has been filed by the complainant assailing the said order.

2. Briefly stated, the prosecution case is that 14th January, 2007, being Makar Sankranti Day, the complainant-Jetha Bhaya Odedara, the petitioner before us, was sitting at the house of one Abha Arjan, along with Navgan Arasi, Rama Arasi Jadeja, Suresh Sanghan Odedara and a few ladies of the house, named, Aarsi Munja, Maliben and Puriben. At around 8.00 p.m. one Ramde Rajsi Odedara, one of the accused persons is alleged to have come to the place where the complainant was sitting and started using abusive language. He was asked not to do so, thereupon he left the place only to return a few minutes later with accused Punja Ram, Lakha Ram, Devsi Rama, Vikram Keshu Odedara, Gangu Ranmal, Vikram Devsi 2 Odedara, Ramde Rajsi Odedara and the respondent and some others armed with knives and a pistol which the -- respondent was allegedly carrying with him. The accused persons started abusing and assaulting the complainant and others who were sitting with him resulting in knife injuries to Vikram Keshu, Navgan Arasi, Rama Arasi and Puriben. Respondent Ganga Maldebhai Odedara is alleged to have fired multiple rounds from the pistol in the air exhorting his companions to kill the complainant and others with him. Navgan Arasi died in the hospital on account of the injuries sustained by him leading to the registration of FIR No. I Cr.No.4/2007 in the Kirti Mandir Police Station, Porbandar City against the respondent and his companions for offences punishable under Sections 302, 307, 324, 147, 148, 149, 323, 504, 507 (2) of IPC read with Section 25(1) of the Arms Act and Section 135 of the Bombay Police Act. With the death of the deceased, Navgan Arasi, in due course the investigation was completed and a charge sheet for the offences mentioned above filed before the Sessions Judge, Porbandar, who made over the case to Fast Track Court, Porbandar for trial and disposal in accordance with 3 law.

3. An application, being Crl. Misc. Application No.3/2010 was then filed by the respondent before the trial Court for grant of bail which was opposed by the prosecution and eventually dismissed by its order dated 11th February, 2010. The trial Court was of the view that no case for the grant of bail to the respondent-applicant had in the facts and circumstances of the case been made out particularly in view of the fact that the respondent was involved in several criminal cases apart from the one in which he was seeking bail. The trial Court was also of the view that the respondent was a member of the gang operating in Porbandar area and that he had absconded for a month before he was arrested. It was also of the view that the role played by the respondent and his association with the other accused persons was likely to affect the smooth conduct of the trial.

4. Aggrieved by the order passed by the trial Court the respondent filed Criminal Misc. Application No.9119/2010 4 before the High Court of Gujarat at Ahmedabad which application as noticed earlier, was allowed by the High -- Court in terms of the impugned order in this petition. The High Court has without scrutinizing and appreciating the evidence in detail come to the conclusion that the respondent had made out a case for grant of bail. The High Court also noticed the fact that no injury was caused with the help of the firearm which the respondent was allegedly carrying with him. The High Court accordingly allowed the application subject to the condition that the respondent shall not take undue advantage of his liberty, tamper with or pressurize the witnesses and that he shall maintain law and order and mark his presence before the concerned police station once in a month. He was also directed to surrender his passport and not to enter Porbandar Taluka limits for a period of six months. The present special leave petition assails the correctness of the above order.

5. We have heard learned counsel for the parties at some length. We have also gone through the record. While the petitioner-complainant has described the respondent and 5 other accused persons as a desperate gang active in Porbandar area and involved in commission of several -- offences, the respondent has in the counter affidavit filed by him made a similar allegation giving particulars of the cases registered against the petitioner and some of the witnesses. In para 4 of the counter affidavit the respondent has stated thus: "4. xxxxxxxxx I state that the complainants' side is a well recognised Gang, properly known as `Arjun Gang' and `God Mother Gang'. Prosecution witness-Abha Arjan, who is the brother of the deceased is the real son of Arjan Munja Jadeja. Arjan Munja Jadega is the real brother of deceased Sarman Munja Jadeja who was a well known history sitter of Porbandar. After death of Sarman Munja, Santokben Jadeja, properly known as `God Mother' took the charge of Gang and it was known as God Mother Gang. Series of offences have been registered against `Arjun Gang' and `God Mother Gang'. Abha Arjan is the nephew of Santokben Jadeja. Abha Arjan Jadeja is involved in series of offences stated herein below: ABHA ARJAN JADEJA C.R. No. Offence U/s. Police Station II-3068/2001 25 (1B) A, etc. of Arms Act Madhavpur II-101/1995 25 (1B) A, etc. of Arms Act Kutiyana II-28/1995 25 (1B) A, etc. of Arms Act Kutiyana 6 II-33/1990 504, 506(2), etc. of IPC Kamlabaug I-193/1997 302, 120-B of IPC and Sec. Kamlabaug 25 (1B) of Arms Act I-170/1994 307, 302 etc. of IPC Kamlabaug II-30/1990 506(2), 114, etc. of IPC Kamlabaug II-54/1997 25 (1B) (A), 25 (1) (D) of Ranavav Arms Act II-3/1994 25 (1B) (A), 25 (1) (D) of Ranavav the Arms Act I-20/1990 367, 147, 325, etc. of IPC Kutiyana and 25 (1) A of the Arms Act I-91/1990 147, 148, 149, 323, 324 of Kirti Mandir IPC I say and submit that the complainants' side is a well recognized Gang, properly known as `Arjun Gang' and `God Mother Gang'. Prosecution witnesses viz. Jetha Bhaya, Suresh Sangan Odedra, Keshu Chana Kudechha, Bhima Rama Bhutiya, Prakash Punja Kadechha, Rama Arshi, Amit Nebha Bhutiya are the members of `Arjun Gang' and `God Mother Gang'. All these prosecution witnesses are involved in series of offences stated herein below:

JETHA BHAYA ODEDRA-COMPLAIANT C.R. No. Offence U/s. Police Station I-44/1995 302 of IPC Udhyognagar I-177/1994 307, 147, 148, 149 etc. of Kamlabaug IPC SURESH SANGAN ODEDRA C.R. No. Offence U/s. Police Station 7 II-79/1993 135-B of B.P. Act Kamlabaug I-189/1993 302 of IPC Kamlabaug I-24/2001 323, 324 etc. of IPC Kamlabaug II-20/1992 110, 117, 135 of B.P. Act Kamlabaug II-61/1995 122-C of B.P. Act Kirti Mandir BHIMA RAMA BHUTIYA - C.R. No. Offence U/s. Police Station III- /1991 66B & 65E of Prohibition Act Kirti Mandir I-101/1991 323, 324, 325, 114 of IPC and Kirti Mandir Section 135 of B.P. Act. III-5132/2003 66(1)B and 65(1)E of Prohibition Kirti Mandir Act I-44/1993 279, 337, 338 of IPC and 177, Udhyognagar 184, etc. M.V. Act I-252/1991 302 of IPC and 25(1) of Arms Kamlabaug Act and 135 of B.P. Act I-30/1993 302 of IPC Madhavpur I-46/1993 147, 325, 149, etc. of IPC Madhavpur III-18/1992 66-B, 65E of the Prohibition Act Madhavpur II-28/1995 25 (1) B-A of Arms Act Kutiyana II-3003/2001 142 of B.P. Act Madhavpur I-49/2001 447, 323, 506 (2), etc. of IPC Udhyognagar III-5085/2000 66-B, 66EE of Prohibition Act Madhavpur I-54/2000 66-B, 65Ee of Prohibition Act Madhavpur II-3054/2000 142 of B.P. Act Madhavpur I-17/1994 143, 506 (2) of IPC Madhavpur 8 PRAKASH PUNJA KUCHHADIYA C.R. No. Offence U/s. Police Station II-97/2007 135 of B.P. Act Kirti Mandir II-3025/2002 135 of B.P. Act Kirti Mandir III-5275/2002 66-1-B, 85(1-3) of Prohibition Kirti Mandir Act III-5052/1999 66-1-B, 85(1-3) of Prohibition Kirti Mandir Act I-102/2001 279, 337 of IPC and 337, 184, Kirti Mandir 177 of M.V. Act RAMA ARSHI JADEJA C.R. No. Offence U/s. Police Station II-96/2007 135 of B.P. Act Kirti Mandir AMIT NEBHA BHUTIYA C.R. No. Offence U/s. Police Station III-5019/1999 66(1) B of Prohibition Act Kirti Mandir

6. The petitioner has not filed any rejoinder to the counter affidavit filed on behalf of the respondent. If the allegations made in the special leave petition and those made in the counter affidavit are correct, the incident appears to have been the result of a gang war between `Kotda Gang' of which the respondent is said to be a 9 member and `Arjun Gang' of which the complainant- petitioner and some of the witnesses are said to be active members. It is true that while no one including a gangster has any right to take law into his own hands or to criminally assault any other gangster operating in any area or any one else for that matter, the fact that two gangs appear to be at war with each other and involved in commission of several offences, makes it imperative that the rival versions presented before the Court in connection with the incident in question are examined carefully and with added circumspection. Having said that we need to note that the bail order was passed as early as on 11th February, 2010 i.e. nearly two years back. It is not the case of the complainant that the respondent has during this period either tried to tamper with the evidence or committed any other act that may affect the fairness of the trial. Equally significant is the fact that there was no gunshot injury to either the complainant or the deceased or any other person involved in the incident. In the circumstances and keeping in view the fact that the prosecution shall be free to apply for cancellation of bail should the respondent fail to comply 10 with any of the conditions imposed upon him by the High Court in the order under challenge, we are not inclined to interfere with the order granting bail at this stage.

7. The special leave petition is dismissed with these observations. We make it clear that nothing said by us in this order shall prejudice either the prosecution or the defence. The observations made by us are relevant only for the disposal of the petition and will not be taken to be the expression of any opinion on the merits of the case pending before the court below. ...................................J.

(CYRIAC JOSEPH)

...................................J.

HC intervenes in HIV infection case ,Tells Cops To File FIR After 23 Kids Get Infected During Blood Transfusion

The Gujarat high court directed police on Thursday to register an FIRin thecaseof 23thalassaemic children being given HIV-infected blood during transfusion in Junagadh.

Parents of the infected children had approached the high court demanding directions to the cops to investigate negligence by the Junagadh Civil Hospital authorities.

Advocate Girish Das has filed another PIL demanding investigation and Rs 5 lakh compensation

for the affected children and their families.

The 23 children came to know that they had been infected with HIV about six months backwhen they wentfor routine check-ups. They were part of a group of 100 children from across Junagadh district, who came to the civil hospital for bloodtransfusion regularly.

The state government filed an affidavit before the court on Thursday, stating the children might have contracted the infection at non-licensed laboratories where they may have gonefor bloodtransfusion.

Acting chief justice Bhaskar Bhattacharya disagreed with the government’s contention and asked its lawyers to file another affidavit with the documentstosupporttheclaim. Thekidshavebeen infectedwith a serious disease and the matter needs to be investigated, the courtsaid.

The parents have demanded that the accused be booked for culpable homicide and causing injury by administering stupefying drug or poison with intent tocauseharm.

“We have told the court that the police has not even registered an FIR despite complaints by the parents,” said advocate Rajesh Dewal, representing the parents.

The petitioners also demanded that the state government should cancel the licence of the blood bank from where the infected blood was sourced. The court, however, said it will decideon theissueonly after the governmentfilesitsfinal report.

The angry parentsjoinedthe Congress’ Satkarma fast against chief minister Narendra Modi’s Sadbhavana mission fast atJunagadhon Thursday.

“If the CM really wants to show some sadbhavana, these kids arewaiting for it.They have been demanding compensation from the state government but noonehadthetimefor them.Finally, their parents had to move the high court for justice,’’ said GirishKotecha,Congressleader anddeputy mayor of Junagadh.

M.S.K.MANDAL SANCHALT MSKM B.ED COLLEGE v. NATIONAL COUNCIL FOR TEACHER EDUC.& ORS [2011] INSC 1209 (16 December 2011)

Judgement

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.11215 OF 2011 (Arising out of SLP (C) No.28473 of 2011)

Shri Morvi Sarvajanik Kelavni Mandal Sanchalit MSKM B.Ed. College ...Appellant

Versus

National Council for Teachers' Education & Ors. ...Respondents

With CIVIL APPEAL NO.11216 OF 2011 (Arising out of SLP (C) No.28528 of 2011)

Shri Yogananda Education and Charitable Trust ...Appellant

Versus

National Council for Teachers' Education & Ors. ...Respondents 1

T.S. THAKUR, J.

1. Leave granted.

2. These appeals arise out of an order dated 7th October, 2011 passed by the High Court of Gujarat at Ahmedabad, whereby Special Civil Application No.9485 of 2011 has been dismissed and order dated 20th July, 2011 as modified by order dated 24th August, 2011 issued by the Western Regional Committee under Section 17 of the National Council of Teachers' Education (for short `NCTE') Act, 1993 withdrawing the recognition of the B.Ed. College established by the appellant upheld.

3. The appellant-Trust has established a college under the name and style Shri Morvi Sarvajanik Kelavni Mandal Sanchalit MSKM B.Ed. College, Rajkot. The college had the benefit of recognition granted in its favour in terms of an order dated 29th May, 2007 under Section 14 (3)(a) of the NCTE Act for offering a B.Ed. with an annual intake of 100 2 students. Shortly after the grant of the said recognition, the NCTE issued a notice dated 27th July, 2008 to the appellant to show cause why the recognition should not be withdrawn in terms of Section 17 of the Act in view of the deficiencies pointed out in the notice like inadequacy of built-up area available to the institution, the land underlying the structure not being in the name of the appellant-Trust and the college being run in a building that is used by two other institutions.

4. The recognition was finally withdrawn by the NCTE on 29th November, 2008 primarily because the appellant had failed to respond to the show cause notice within the period stipulated for the purpose. The withdrawal order was, however, successfully challenged before the High Court by the appellant with the High Court issuing certain directions including a direction to the appellant-college to remove the defects pointed out by the NCTE and to offer the institution for a fresh inspection by the NCTE. The High Court also directed that while admissions for the current year shall not be affected by the withdrawal of recognition, in the event of 3 non-compliance with the requirements of the Regulations, the institution shall not be permitted to admit any student for the next year. The NCTE was given liberty to have a fresh inspection conducted and pass appropriate orders in accordance with law after issuing a notice to the institution.

5. In compliance with the directions of the High Court, the appellant by its letter dated 20th December, 2010 intimated to the NCTE that the deficiencies in question had been removed and invited the NCTE to depute a team for a fresh inspection of the college. An inspection was accordingly conducted that culminated in the issue of a fresh notice to the appellant again pointing out several deficiencies in the institution including inadequacy of space, staff and the fact that the college had no land in its own name and that the institution was being run in a building which was being used by two other colleges. The appellant appears to have sent a reply to the said show-cause notice but before a final decision could be taken on the same, the appellant filed Special Civil Appeal No.6507 of 2011 before the High Court for a mandamus to the University to allot students to the appellant-college. By an order dated 14th 4 June, 2011, the High Court directed the University to allot the students to the appellant-college for the academic session 2011-2012. In the meantime, the Western Regional Committee issued an order on 20th July, 2011 withdrawing the recognition granted to the appellant- college in exercise of its powers under Section 17 of NCTE Act. The order contained as many as nine different grounds for the said withdrawal. Aggrieved, the appellant filed Special Civil Application No.9485 of 2011 before the High Court, inter alia, contending that the withdrawal of recognition was on grounds that went beyond the show- cause notice issued to the institution. It was also contended that pursuant to the directions of the High Court the University had allotted 60 students to the college who were on its rolls and whose future was likely to be adversely affected by the withdrawal order.

6. While the writ petition filed by the appellant was still pending, Western Regional Committee issued a modified withdrawal order dated 24th August, 2011 relying upon the visiting team report which found the following deficiencies:

5 (i) The Institution neither had land on the date of submission of application as per Clause 7(D) of the NCTE regulations 2002, nor does it have the land even today.

(ii) The Institution is running in a flat of Multi Storied Residential Building.

(iii) Registered lease deed of the flat was executed on 18.03.2011, that is beyond the time limit of 31.12.2010 as prescribed by the Hon'ble High Court.

(iv) One of the lecturers was not qualified as on the date of appointment.

7. The High Court was not happy with the above order as is evident from an interim order dated 30th August, 2011 whereby the Regional Director, Western Regional Committee, National Council for Teacher Education, Bhopal, was directed to send a new team to inspect the institution and submit a fresh report regarding the defects and deficiencies in the infrastructure provided by the college. An inspection committee was accordingly deputed by the NCTE who filed a report before the High Court in a sealed cover. The report, inter alia, stated:

"The team had done the inspection of infrastructure, institutional facilities etc. The C.D. is enclosed. The videography had been in a continuous manner. The four corners of land and four corners of the buildings are prominently picturised. The photography of land, 6 building, instructional facilities, staff is also done. (C.D. and album enclosed).

The Hon'ble High Court has directed to do the inspection with regards to the defects shown in the withdrawal order.

The inspection is done accordingly following the orders of the Hon'ble High Court.

The observations of the visiting team regarding the defects/deficiencies are noted below:

(i) It is true that the institution does not have the registered land document and is occupying the land belonging to Shri Uma Education Trust.

(ii) It is true that the institution has submitted the building plan of Shri Uma Education Trust. This building plan was approved by Sarpanch, Vajdi (Virda). The approval of Rajkot Urban Development Authority is still not obtained by the Uma Education Trust.

(iii) It is true that the land use certificate submitted by the Institution is about the land of Uma Education Trust.

(iv) It is true that the Institution does not have its own land and building. The institution is running on the premises of the Uma Education Trust.

(v) The teaching staff profile is approved by In- charge Vibhagiya Officer, Saurashtra University on 18.02.2009 on 11.05.2011 and 13.05.2011. Four lecturers have no M.Ed. qualifications. One common observed that all lists were approved by in-charge, Vibhagiya Officer of the Unversity.

(vi) Uma B.Ed. college and Jalaram B.Ed. College are being run on the same premises.

7 (vii) It is true that the institution has submitted the building plan of Shri Uma Education Trust. This building plan was approved by the Sarpanch, Vajdi (Virda). The approval of Rajkot Urban Development Authority is still not obtained by the Uma Education Trust.

(viii) Morvi Sarvajanik Kelevani Mandal and Jalaram Education Trust are unilaterally merged with Uma Education Trust without due authorisation of the competent authority and also without the approval of the WRC. The matter is still under correspondence.

(ix) The institution/Morvi Sarvajanik Kelavani Mandal did not possess adequate land or govt. land acquired on long terms lease basis or on ownership."

8. The High Court upon a consideration of the relevant records including the inspection report placed before it, dismissed the writ petition relying upon the decisions of this Court in Chairman, Bhartia Education Society and Anr. v. State of Himachal Pradesh and Ors. (2011) 4 SCC 527, N.M. Nageshwaramma v. State of Andhra Pradesh and Anr. (1986) Supp. SCC 166, Students of Dattatraya Adhyapak Vidyalya v. State of Maharashtra and Ors. SLP (C) No.2067 of 1991, decided on 19.2.1991, Andhra Kesari Educational Society v. Director of School Education (1989) 1 SCC 392 and a few others. The High Court held that the 8 appellant was not entitled to any relief in the writ proceedings filed on its behalf and accordingly dismissed the writ petition. Hence the present appeals, assail the said judgment and order.

9. We have heard learned counsel for the parties and perused the record.

10. Mushroom growth of ill-equipped, under-staffed and un-recognised educational institutions was noticed by this Court in State of Maharashtra v. Vikas Sahebrao Roundale and Ors. (1992) 4 SCC 435. This Court observed that the field of education had become a fertile, perennial and profitable business with the least capital outlay in some States and that societies and individuals were establishing such institutions without complying with the statutory requirements. The unfortunate part is that despite repeated pronouncements of this Court over the past two decades deprecating the setting up of such institutions. The mushrooming of the colleges continues all 9 over the country at times in complicity with the statutory authorities, who fail to check this process by effectively enforcing the provisions of the NCTE Act and the Regulations framed thereunder.

11. The present is one such case where the institution established by the appellant has been inspected more than once and several deficiencies that seriously affect its capacity to impart quality education and training to future teachers specifically pointed out. Inadequacy of space and staff, apart from other requirements stipulated under the provisions of the Act and the Regulations, is something which disqualifies any institution from seeking recognition. Such deficiencies have not been disputed before us nor can the same be disputed in the light of the reports submitted by the inspecting teams from time to time, including the report submitted on the basis of the latest inspection that was conducted pursuant to the directions issued by the High Court. It is difficult to appreciate how the institution could have reported compliance with the requirements of the regulations and complete removal of the deficiencies 10 after the order passed by the High Court when the institution had neither the land standing in its name nor the building constructed in which it could conduct the training programme. The fact that the institution was being run in a building which was shared by two other colleges was itself sufficient to justify withdrawal of the recognition granted in its favour. It was also noted by the inspecting team that four lecturers employed by the appellant did not have the requisite M.Ed. qualification. Suffice it to say that the institution was lacking in essential infrastructural facilities which clearly justified withdrawal of the recognition earlier granted to it.

12. Confronted with the above position, learned counsel for the appellant argued that the students admitted to the college for the academic session 2011-2012 could be allowed to appear in the examination to avoid prejudice to them and to save their careers. A similar contention urged before the High Court has been rejected by it relying upon the decisions of this Court in which decisions this Court has not favoured grant of such relief to students admitted to unrecognised institution on consideration of misplaced 11 sympathy. The High Court has also noted that the students had been transferred to other recognised colleges and that in any case students admitted for the academic session 2011-2012 could not be allowed to continue in an institution which did not have the requisite infrastructure prescribed under the NCTE Regulations and norms. It was argued on behalf of the appellants that the High Court was not right in observing that students had been transferred to other institutions. At any rate the order withdrawing recognition could not, according to the learned counsel, affect students admitted to the institution for the academic session 2011-2012 as the withdrawal order could only be prospective in nature and having been passed in August, 2011 was relevant only for the academic session 2012- 2013. We do not think so, firstly, because the recognition of the institution stood withdrawn on 20th July, 2011 which meant that while it had no effect qua admissions for the academic session 2010-2011 it was certainly operative qua admissions made for the academic session 2011-12 which commenced from 1st August, 2011 onwards. The fact that there was a modification of the said order of withdrawal on 12 24th August, 2011 did not obliterate the earlier order dated 20th July, 2011. The modifying order would in our opinion relate back and be effective from 20th July, 2011 when the recognition was first withdrawn. Such being the position admissions made for the academic session 2011-2012 were not protected under the statute.

13. Secondly, because this Court has in a long line of decisions rendered from time to time disapproved of students being allowed to continue in unrecognised institutions only on sympathetic considerations. In N.M. Nageshwaramma (supra) this Court while dealing with the prayer for grant of permission to the students admitted to unrecognised institution observed:

"3. xxxxxx We are unable to accede to these requests. These institutions were established and the students were admitted into these institutes despite a series of press notes issued by the Government. If by a fiat of the court we direct the Government to permit them to appear at the examination we will practically be encouraging and condoning the establishment of unauthorised institutions. It is not appropriate that the jurisdiction of the court either under Article 32 of the Constitution or Article 226 should be frittered away for such a purpose. The Teachers Training Institutes are meant to teach children of impressionable age and we cannot let loose on the innocent and unwary children, teachers who have not 13 received proper and adequate training. True they will be required to pass the examination but that may not be enough. Training for a certain minimum period in a properly organised and equipped Training Institute is probably essential before a teacher may be duly launched. We have no hesitation in dismissing the writ petitions with costs."

(emphasis supplied)

14. To the same effect is the decision of this Court in Managing Committee of Bhagwan Budh Primary Teachers Training College and another v. State of Bihar & Ors. (1990) Supp. SCC 722, where this Court observed:

"2. It is not possible to grant any such permission as prayed for because the granting of such permission would be clearly violating the provisions of the Education Act (see the judgments in S.L.P. No. 12014 of 1987 decided on November 25, 1987 and the A.P. Christians Medical Educational Society v. Government of A.P.)....".

15. In State of Tamil Nadu and Ors. v. St. Joseph Teachers Training Institute and Anr. (1991) 3 SCC 87, this Court once again found fault with the grant of relief to students admitted to unrecognised institutions on humanitarian grounds. This Court said:

"6. The practice of admitting students by unauthorised educational institutions and then seeking permission for permitting the students to appear at the examination has been looked with disfavour by this Court. ............ In A.P. 14 Christians Medical Educational Society v. Government of A.P [1986] INSC 91; (1986) 2 SCC 667, a similar request made on behalf of the institution and the students for permitting them to appear at the examination even though affiliation had not been granted, was rejected by this Court. The court observed that any direction of the nature sought for permitting the students to appear at the examination without the institution being affiliated or recognised would be in clear transgression of the provision of the Act and the regulations. The court cannot be a party to direct the students to disobey the statute as that would be destructive of the rule of law. The Full Bench noted these decisions and observations and yet it granted relief to the students on humanitarian grounds. Courts cannot grant relief to a party on humanitarian grounds contrary to law. Since the students of unrecognised institutions were legally not entitled to appear at the examination held by the Education Department of the government, the High Court acted in violation of law in granting permission to such students for appearing at the public examination. The directions issued by the Full Bench are destructive of the rule of law. Since the Division Bench issued the impugned orders following the judgment of the Full Bench, the impugned orders are not sustainable in law."

(emphasis supplied)

16. Reference may also be made to State of Maharashtra v. Vikas Sahebrao Roundale and Ors. (supra) and Chairman, Bhartia Education Society v. Himachal Pradesh & Ors. (supra). In the latter case this Court observed :

"15. The practice of admitting students by unrecognised institutions and then seeking permission for the students to appear for the examinations has been repeatedly disapproved by this Court (see N.M. Nageshwaramma v. State of A.P, A.P. Christian Medical Educational Society v. Govt. of A.P. and State of Maharashtra v. Vikas Sahebrao Roundale4). We, therefore, find no reason to interfere with the decision of the High Court rejecting the prayer of the students admitted in 1999 to regularise their admissions by 15 directing the Board to permit them to appear for the JBT examination conducted by it. The two appeals (CAs Nos. 1228 and 1229 of 2011) filed by the Society/Institute and the students in regard to the 1999 admissions are therefore liable to be dismissed."

17. There is no distinguishing feature between the cases mentioned above and the case at hand for us to strike a discordant note. The institution established by the appellant is not equipped with the infrastructure required under the NCTE Act and the Regulations. It is not in a position to impart quality education, no matter admissions for the session 2011-2012 were made pursuant to the interim directions issued by the High Court. We have, therefore, no hesitation in rejecting the prayer for permitting the students to continue in the unrecognised institution of the appellant or directing that they may be permitted to appear in the examination. We, however, make it clear that this order will not prevent the respondent-University from examining the feasibility of reallocating the students who were admitted through the University process of selection and counselling to other recognised colleges to prevent any prejudice to such students. Such re-allocation for the next session may not remedy the situation fully qua the students 16 who may have to start the course afresh but it would ensure that if such admissions/reallocation is indeed feasible, the students may complete their studies in a recognised college instead of wasting their time in a college which does not enjoy recognition by the NCTE. We, however, leave this aspect entirely for the consideration of the University at the appropriate level, having regard to its Rules and Regulations and subject to availability of seats for such adjustment to be made as also the terms and conditions on which the same could be made. This order shall also not prevent the affected students from seeking such reliefs against the appellant college as may be legally permissible including relief by way of refund of the fee recovered from them.

18. With the above observations, these appeals fail and are hereby dismissed with costs assessed at Rs.20,000/-. .....................................J.

(Dr. B.S. CHAUHAN) 17 .....................................J.