Supreme Court: If two accused out of six accused are acquitted by high court in appeal, offence U/S 149 of IPC will not survive against remaining four accused

A combined reading of Section 141 and Section 149 IPC (supra) show that an assembly of less than five members is not unlawful assembly within the meaning of Section 141 and cannot, therefore, form the basis for conviction for an offence with the aid of Section 149 IPC. The effect of the acquittal of the two accused persons by the High Court and without the High Court finding that some other known or unknown persons were also involved in the assault, would be that for all intent and purposes the two acquitted accused persons were not members of the unlawful assembly. Thus, only four accused could be said to have been the members of the assembly but such an assembly which comprises of less than five members is not ah unlawful assembly within the meaning of Section 141 IPC. The existence of an unlawful assembly is a necessary postulate for invoking Section 149 IPC. Where the existence of such an unlawful assembly is not proved, the conviction with the aid of Section 149 IPC cannot be recorded or sustained. The failure of the prosecution to show that the assembly was unlawful must necessarily result in the failure of the charge under Section 149 IPC. Consequently, the conviction of appellants 2 to 4 for an offence under Section 326/149 IPC cannot be sustained and the same would be the position with regard to the conviction of all the appellants for other offences with the aid of Section 149 IPC also. {Para 10}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 237 of 1993 

Decided On: 24.02.1993

Subran and Ors. Vs. State of Kerala

Hon'ble Judges/Coram:

M.N. Venkatachaliah, C.J., B.P. Jeevan Reddy and Dr. A.S. Anand, JJ.

Author: A.S. Anand, J.

Citation: 2008(4) MHLJ (Crl)419,2009 ALLMR (Cri) 359, MANU/SC/0546/1993.

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Bombay HC: The High court should not entertain writ petition challenging rejection of nomination paper by returning officer in election dispute

Division Bench decision of this Court in Vinod Pandurang Bharsakade Vs. Returning Officer, Akot and Anr. reported in MANU/MH/1064/2002 : 2003(4) Mh. L.J. 359. It was contended that any grievance that the petitioners may have, in relation to the orders rejecting their nominations, ought to be raised after the elections are over by raising appropriate election dispute.{Para 2}

68. For the reasons aforesaid, while agreeing with the view in Vinod Pandurang Bharsakade (supra), we answer the fundamental question as formulated in paragraph 27 in the negative. As a sequel thereto, we answer the questions referred by the Division Bench in the manner as follows:-

(i) Allowing a challenge in a writ petition to rejection of nomination form to contest an election and granting the relief claimed by setting aside such order of rejection is definitely not a step to sub-serve the progress of election and/or facilitate its completion in the sense enunciated in Mohinder Singh Gill (supra) and explained in Ashok Kumar (supra) though it may not always amount to intervention, obstruction or protraction of the election;

(ii) Article 243-O(b) of the Constitution of India is a bar for entertaining a writ petition under Article 226 of the Constitution against an order passed by the Returning Officer rejecting nomination paper and such provision would clearly be attracted whenever a writ petition is presented before a Court for its consideration; and

(iii) The law laid down in Vinod Pandurang Bharsakade (supra) represents the correct view of law; consequently, we hold that the decision in Smt. Mayaraju Ghavghave (supra) and Sudhakar s/o. Vitthal Misal (supra) do not lay down the correct law;

 IN THE HIGH COURT OF BOMBAY

Writ Petition (ST.) Nos. 26 and 28 of 2021

Decided On: 13.01.2021

Karmaveer Tulshiram Autade and Ors. Vs. The State Election Commission, Mumbai and Ors.

Hon'ble Judges/Coram:

Dipankar Datta, C.J., A.S. Gadkari and G.S. Kulkarni, JJ.

Citations: AIR 2021 BOMBAY 90, AIRONLINE 2021 BOM 6, MANU/MH/0033/2021

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Kerala HC: Whether Motor accident claim tribunal can dismiss claim petition for default/non prosecution?

 Where the Tribunal is genuinely satisfied that there are contumacious laches on the part of the claimants in prosecuting their claims and where the claimants are not interested in prosecuting their cases, the Tribunal can dismiss the application for default using Order IX Rule 8 in appropriate cases. To the above extent the decisions in Lukose v. Govindan Nair (MANU/KE/0070/1990 : 1990 (1) KLT 378) and Saramma Scaria and others v. Mathai and another (MANU/KE/0165/2002 : 2002 (2) ILR 191), are overruled.

5. When the claim is dismissed for default, parties will be free to approach the Tribunal to set aside such orders by filing application under Order IX Rule 9. But, if the Tribunal decides the matter on merit suo motu collecting evidence, the only remedy open to the claimant will be to file an appeal before the High Court as provided under Section 173 of the Act. After the judgment in Saramma's case (supra) we have seen that many Claims Tribunals are dismissing the cases on merits holding that no evidence is adduced on the side of the claimant and claimant is absent. In such circumstances, the claimant will be compelled to approach the High Court which may incur heavy expenses and inconveniences. If the Tribunal dismisses the case for default, he can approach the Tribunal itself of the place which he has selected in view of section 166(2) of the Act, to file the claim petition for setting aside the order of dismissal of the case for default and the Tribunal should be liberal in its approach when such applications are filed.

 IN THE HIGH COURT OF KERALA

M.A.C.A. No. 327 of 2004

Decided On: 01.09.2005

Jacob Thomas Vs. C. Pandian and Ors.

Hon'ble Judges/Coram:

J.B. Koshy, K.M. Joseph & K.R. Udayabhanu

Author: J.B. Koshy, J.

Citation: I(2006)ACC204, 2006ACJ464, AIR2006Ker77, AIR2006Ker77, ILR2005(4)Kerala419, [2006(2) JCR250(Kerala)], 2005(3)KLJ331, 2005(4)KLT545, 2006(1)RCR(Civil)193,MANU/KE/0396/2005.

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Karnataka HC: Landmark judgment on S 163A of Motor vehicle Act

Questions framed are:

1. Whether Section 163-A of the Motor Vehicles Act, 1988 (for short 'the Act') confers substantial or procedural rights to the claimants?

2. Whether the claim under Section 163-A of the Act is to be treated as interim or final? A fortiori as to whether a claimant after receiving compensation under Section 163-A can later on make a claim under Section 166 of the Act as well?

3. Whether Section 163-A of the Act would be applicable to the claims made in respect of the accidents which took place prior to its introduction i.e., 14.11.1994?

Corollary to this question would be as to whether the provisions of Section 163-A of the Act could be made applicable to the accidents which took place before coming into force of the Motor Vehicles Act, 1988 and had occurred when Motor Vehicles Act, 1939 was in operation?

4. Whether a claim under Section 163-A of the Act is tenable where the income of the victim was/is more than Rs. 40,000/- per annum and where the actual medical expenses incurred is Rs. 15,000/-?

5. As to whether in a claim petition filed under Section 163-A by persons other than wife and children, the Motor Accidents Claims Tribunal can apply a multiplier lower than the one permitted in II Schedule on the basis of the age of the claimant/s?

6. As to whether a claimant, during the pendency of the proceedings at the original or the appellate stage, can amend his claim petition under Section 166 as a petition under Section 163-A of the Act?

Answers given by the Full Bench in the form of opinion are as under:

(i) Question No. 1: The Section confers substantial rights to the claimants.

(ii) Question No. 2: The compensation received under Section 163A is final and not an interim compensation.

(iii) Question No. 3: The application of Section 163A is prospective and not retrospective.

(iv) Question No. 4: A claim application under Section 163A is not tenable if made by a person whose income exceeds Rs. 40,000/- per annum. But, in case the person with the higher income notionally brings down his income to Rs. 40,000/- in order to present his claim under Section 163A the same can be permitted.

(v) Question No. 5: Answer to question No. 5 is in the negative. In a claim petition filed by the persons other than the wife and children under Section 163-A the Court cannot apply a multiplier lower than the one permitted in the Second Schedule on the basis of the age of the claimants.

(vi) Question No. 6: A Claimant during the pendency of the proceedings at the original or appellate stage can amend his claim petition made under Section 166 to a petition under Section 163-A provided he satisfies other conditions such as the income factor etc.

Gist

The full Bench is of the opinion that Section 163-A is substantial and hence prospective. It caters only to a special category of victims of road accidents where annual income does not exceed Rs. 40,000/- The payment under Section 163-A is held to be final and not interim and an application filed under Section 166 of the Act can be amended or converted in original or appellate proceedings. More important, the Full Bench has declared that under Section 163-A, when the application is filed by persons other than wife and children the multiplier suggested in Second Schedule is to be applied and not a lower multiplier.

 IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Miscellaneous First Appeal No. 5377 of 1998 (MVC)

Decided On: 10.04.2001

Guruanna Vadi and Ors. Vs. The General Manager, Karnataka State Road Transport Corporation, Bangalore and Ors.

Hon'ble Judges/Coram:

Ashok Bhan, T.N. Vallinayagam and A.V. Srinivasa Reddy, JJ.

Author: Ashok Bhan, J.

 Citations

2001 KARLJ 5 3222001 AIR KAR 2752001 KCCR 3 14922001 ACJ 15282002 ACC 3 3502001 ILR KAR 28792001 SCC ONLINE KAR 2632001 KANT LJ 5 3222001 AIR KANT R 12272001 AIHC 29992001 AIR KANT 2752001 ILR KARNATAKA 28792001 KANTLJ 5 322, MANU/KA/0333/2001

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Supreme Court: What is duty of the while deciding bail application under Maharashtra Control of Organized Crime Act, 1999?

The question as to whether he is involved in the commission of organized crime or abetment thereof must be judged objectively. Only because some allegations have been made against a high ranking officer, which cannot be brushed aside, may not by itself be sufficient to continue to keep him behind the bars although on an objective consideration the court may come to the conclusion that the evidences against him are not such as would lead to his conviction. In case of circumstantial evidence like the present one, not only culpability or mens rea of the accused should be prima facie established, the Court must also consider the question as to whether the circumstantial evidence is such whereby all the links in the chain are complete.

55. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in future must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.

56. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.

57. The duty of the court at this stage is not to weigh the evidence but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in Sub-section (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the Court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 523 of 2005.

Decided On: 07.04.2005

Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

N. Santosh Hegde, B.P. Singh and S.B. Sinha, JJ.

Author: S.B. Sinha, J.

Citation: (2005) 5 SCC 294,MANU/SC/0268/2005.

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Supreme Court guidelines laying down a framework of preventive, remedial, and punitive measures to combat mob lynching

40. In view of the aforesaid, we proceed to issue the following guidelines:

A. Preventive Measures

(i) The State Governments shall designate, a senior police officer, not below the rank of Superintendent of Police, as Nodal Officer in each district. Such Nodal Officer shall be assisted by one of the DSP rank officers in the district for taking measures to prevent incidents of mob violence and lynching. They shall constitute a special task force so as to procure intelligence reports about the people who are likely to commit such crimes or who are involved in spreading hate speeches, provocative statements and fake news.

(ii) The State Governments shall forthwith identify Districts, Sub-Divisions and/or Villages where instances of lynching and mob violence have been reported in the recent past, say, in the last five years. The process of identification should be done within a period of three weeks from the date of this judgment, as such time period is sufficient to get the task done in today's fast world of data collection.

(iii) The Secretary, Home Department of the concerned States shall issue directives/advisories to the Nodal Officers of the concerned districts for ensuring that the Officer In-charge of the Police Stations of the identified areas are extra cautious if any instance of mob violence within their jurisdiction comes to their notice.

(iv) The Nodal Officer, so designated, shall hold regular meetings (at least once a month) with the local intelligence units in the district along with all Station House Officers of the district so as to identify the existence of the tendencies of vigilantism, mob violence or lynching in the district and take steps to prohibit instances of dissemination of offensive material through different social media platforms or any other means for inciting such tendencies. The Nodal Officer shall also make efforts to eradicate hostile environment against any community or caste which is targeted in such incidents.

(v) The Director General of Police/the Secretary, Home Department of the concerned States shall take regular review meetings (at least once a quarter) with all the Nodal Officers and State Police Intelligence heads. The Nodal Officers shall bring to the notice of the DGP any inter-district co-ordination issues for devising a strategy to tackle lynching and mob violence related issues at the State level.

(vi) It shall be the duty of every police officer to cause a mob to disperse, by exercising his power Under Section 129 of Code of Criminal Procedure, which, in his opinion, has a tendency to cause violence or wreak the havoc of lynching in the disguise of vigilantism or otherwise.

(vii) The Home Department of the Government of India must take initiative and work in co-ordination with the State Governments for sensitising the law enforcement agencies and by involving all the stake holders to identify the measures for prevention of mob violence and lynching against any caste or community and to implement the constitutional goal of social justice and the Rule of Law.

(viii) The Director General of Police shall issue a circular to the Superintendents of Police with regard to police patrolling in the sensitive areas keeping in view the incidents of the past and the intelligence obtained by the office of the Director General. It singularly means that there should be seriousness in patrolling so that the anti-social elements involved in such crimes are discouraged and remain within the boundaries of law thus fearing to even think of taking the law into their own hands.

(ix) The Central and the State Governments should broadcast on radio and television and other media platforms including the official websites of the Home Department and Police of the States that lynching and mob violence of any kind shall invite serious consequence under the law.

(x) It shall be the duty of the Central Government as well as the State Governments to take steps to curb and stop dissemination of irresponsible and explosive messages, videos and other material on various social media platforms which have a tendency to incite mob violence and lynching of any kind.

(xi) The police shall cause to register FIR Under Section 153A of Indian Penal Code and/or other relevant provisions of law against persons who disseminate irresponsible and explosive messages and videos having content which is likely to incite mob violence and lynching of any kind.

(xii) The Central Government shall also issue appropriate directions/advisories to the State Governments which would reflect the gravity and seriousness of the situation and the measures to be taken.

B. Remedial Measures

(i) Despite the preventive measures taken by the State Police, if it comes to the notice of the local police that an incident of lynching or mob violence has taken place, the jurisdictional police station shall immediately cause to lodge an FIR, without any undue delay, under the relevant provisions of Indian Penal Code and/or other provisions of law.

(ii) It shall be the duty of the Station House Officer, in whose police station such FIR is registered, to forthwith intimate the Nodal Officer in the district who shall, in turn, ensure that there is no further harassment of the family members of the victim(s).

(iii) Investigation in such offences shall be personally monitored by the Nodal Officer who shall be duty bound to ensure that the investigation is carried out effectively and the charge-sheet in such cases is filed within the statutory period from the date of registration of the FIR or arrest of the Accused, as the case may be.

(iv) The State Governments shall prepare a lynching/mob violence victim compensation scheme in the light of the provisions of Section 357A of Code of Criminal Procedure within one month from the date of this judgment. In the said scheme for computation of compensation, the State Governments shall give due regard to the nature of bodily injury, psychological injury and loss of earnings including loss of opportunities of employment and education and expenses incurred on account of legal and medical expenses. The said compensation scheme must also have a provision for interim relief to be paid to the victim(s) or to the next of kin of the deceased within a period of thirty days of the incident of mob violence/lynching.

(v) The cases of lynching and mob violence shall be specifically tried by designated court/Fast Track Courts earmarked for that purpose in each district. Such courts shall hold trial of the case on a day to day basis. The trial shall preferably be concluded within six months from the date of taking cognizance. We may hasten to add that this direction shall apply to even pending cases. The District Judge shall assign those cases as far as possible to one jurisdictional court so as to ensure expeditious disposal thereof. It shall be the duty of the State Governments and the Nodal Officers in particular to see that the prosecuting agency strictly carries out its role in appropriate furtherance of the trial.

(vi) To set a stern example in cases of mob violence and lynching, upon conviction of the Accused person(s), the trial court must ordinarily award maximum sentence as provided for various offences under the provisions of the Indian Penal Code.

(vii) The courts trying the cases of mob violence and lynching may, on application by a witness or by the public prosecutor in relation to such witness or on its own motion, take such measures, as it deems fit, for protection and for concealing the identity and address of the witness.

(viii) The victim(s) or the next of kin of the deceased in cases of mob violence and lynching shall be given timely notice of any court proceedings and he/she shall be entitled to be heard at the trial in respect of applications such as bail, discharge, release and parole filed by the Accused persons. They shall also have the right to file written submissions on conviction, acquittal or sentencing.

(ix) The victim(s) or the next of kin of the deceased in cases of mob violence and lynching shall receive free legal aid if he or she so chooses and engage any advocate of his/her choice from amongst those enrolled in the legal aid panel under the Legal Services Authorities Act, 1987.

C. Punitive Measures

(i) Wherever it is found that a police officer or an officer of the district administration has failed to comply with the aforesaid directions in order to prevent and/or investigate and/or facilitate expeditious trial of any crime of mob violence and lynching, the same shall be considered as an act of deliberate negligence and/or misconduct for which appropriate action must be taken against him/her and not limited to departmental action under the service rules. The departmental action shall be taken to its logical conclusion preferably within six months by the authority of the first instance.

(ii) In terms of the ruling of this Court in Arumugam Servai v. State of Tamil Nadu   MANU/SC/0434/2011 : (2011) 6 SCC 405, the States are directed to take disciplinary action against the concerned officials if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident has already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.

41. The measures that are directed to be taken have to be carried out within four weeks by the Central and the State Governments. Reports of compliance be filed within the said period before the Registry of this Court.

42. We may emphatically note that it is axiomatic that it is the duty of the State to ensure that the machinery of law and order functions efficiently and effectively in maintaining peace so as to preserve our quintessentially secular ethos and pluralistic social fabric in a democratic set-up governed by Rule of law. In times of chaos and anarchy, the State has to act positively and responsibly to safeguard and secure the constitutional promises to its citizens. The horrendous acts of mobocracy cannot be permitted to inundate the law of the land. Earnest action and concrete steps have to be taken to protect the citizens from the recurrent pattern of violence which cannot be allowed to become "the new normal". The State cannot turn a deaf ear to the growing rumblings of its People, since its concern, to quote Woodrow Wilson, "must ring with the voices of the people." The exigencies of the situation require us to sound a clarion call for earnest action to strengthen our inclusive and all-embracing social order which would, in turn, reaffirm the constitutional faith. We expect nothing more and nothing less.

43. Apart from the directions we have given hereinbefore and what we have expressed, we think it appropriate to recommend to the legislature, that is, the Parliament, to create a separate offence for lynching and provide adequate punishment for the same. We have said so as a special law in this field would instill a sense of fear for law amongst the people who involve themselves in such kinds of activities. There can be no trace of doubt that fear of law and veneration for the command of law constitute the foundation of a civilized society.

 IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) Nos. 754, 764, 768 of 2016, 732 of 2017 and Writ Petition (Criminal) No. 122 of 2017 (Under Article 32 of the Constitution of India)

Decided On: 17.07.2018

Tehseen S. Poonawalla Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Author: Dipak Misra, C.J.I.

Citation: MANU/SC/0738/2018,(2018) 9 SCC 501.

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Supreme Courts guidelines for Session Judges regarding procedure to be followed in case of death penalty cases

iv. The Sessions Court shall endeavour to follow the following guidelines:

a. As soon as the order of the High Court confirming or imposing the death sentence is received by the Sessions Court, a note thereof must be taken, and the disposed of case shall be listed on the cause list. The proceedings can be numbered as Misc. Application depending upon the applicable Rules of the procedure. The Sessions Court shall immediately issue notice to the State Public Prosecutor or the investigating agency calling upon them to state whether any appeal or special leave petition has been preferred before this Court and what is the outcome of the said petition/appeal;

b. If the State Public Prosecutor or the investigating agency reports that the appeal is pending, as soon as the order of this Court confirming or restoring the death sentence is received by the Sessions Court, again, the disposed of case or miscellaneous applications should be listed on the cause list and notice be issued to the State Public Prosecutor or the investigating agency to ascertain whether any review/curative petitions or mercy petitions are pending. If information is received regarding the pendency of review/curative petitions or mercy petitions, the Sessions Court shall keep on listing the disposed of case after intervals of one month so that it gets the information about the status of the pending petitions. This will enable the Sessions Court to issue a warrant for the execution of the death sentence as soon as all the proceedings culminate;

c. However, before issuing the warrant, notice should be issued to the convict, and the directions issued by the Allahabad High Court in the case of People's Union for Democratic Rights (PUDR) MANU/UP/0242/2015, and as elaborated above, shall be implemented by the Sessions Court;

d. The Sessions Courts shall consider what is held in Paragraph 25 above;

25. The proceedings for issuing a warrant for executing a death sentence Under Sections 413 and 414 of the Code of Criminal Procedure do not require any judicial adjudication. Before issuing the warrant, the Sessions Court must satisfy itself that the order of death sentence has attained finality and the review/curative or mercy petitions, if filed, have been finally rejected. Before issuing a warrant, the Sessions Court has to issue notice to the convict so that even the convict can state whether any other proceedings are pending before the Courts or Constitutional authorities. In a given case, the convict may not be interested in pursuing remedies. The Sessions Court can verify this aspect after issuing a notice to the convict. The Sessions Court, in such a case, must appraise the convict of the remedies available and, if required, provide legal aid to enable the convict to take recourse to such remedies. After the convict has been made aware of the remedies available, reasonable time be granted to the convict to consider, weigh and even consult a member of his family or friend to finally take a decision on adopting remedies as the possibility of thinking logically and rationally may be impeded or hampered because of the situation being faced by the convict. The Sessions Court can issue a warrant only after providing such reasonable time to the convict and after satisfying itself that the convict has taken a conscious decision of not pursuing the available remedies. The reasonable time can be of seven days. The Sessions Court can direct the counselling of the convict if it is not satisfied that the decision is a well-informed, considered and conscious decision. If such a procedure is followed, it enables the convict to take recourse to the available legal remedy. Moreover, if an order of issue of warrant of execution is passed after notice to the convict, it enables the convict to challenge the order of issuing a warrant of execution. But after the convict exhausts all remedies, including filing mercy petitions or after the Sessions Court is satisfied that the convict has taken a conscious decision of not availing the remedies, the execution warrant must be issued without any delay. It is the responsibility of the trial court to take up and conclude the proceedings of issuing a warrant of execution as expeditiously as possible. The trial court must give necessary out of turn priority.

26. After the decisions on mercy petitions, if there is an inordinate and unexplained delay in actual execution for no fault on the part of the convict, there is no reason why the principles set out in paragraph 23 should not apply. The principles will also apply to a case where there is a long and unexplained delay on the part of the Sessions Court in issuing the warrant of execution in accordance with Sections 413 and 414 of Code of Criminal Procedure. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2831 of 2023 and 2832 of 2023

Decided On: 09.12.2024

State of Maharashtra and Ors. Vs. Pradeep Yashwant Kokade and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka, Ahsanuddin Amanullah and Augustine George Masih, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation:  MANU/SC/1305/2024.

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Supreme Court: Right To Property | 7 Sub-Rights of land owner Which State Must Protect During Land Acquisition

 The Right to property: A net of intersecting rights: There is yet another aspect of the matter. Under our constitutional scheme, compliance with a fair procedure of law before depriving any person of his immovable property is well entrenched. {Para 24}

25. While it is true that after the 44th Constitutional Amendment4, the right to property drifted from Part III to Part XII of the Constitution, there continues to be a potent safety net against arbitrary acquisitions, hasty decision-making and unfair redressal mechanisms. Despite its spatial placement, Article 300A5 which declares that "no person shall be deprived of his property save by authority of law" has been characterized both as a constitutional and also a human right6. To assume that constitutional protection gets constricted to the mandate of a fair compensation would be a disingenuous reading of the text and, shall we say, offensive to the egalitarian spirit of the Constitution.

26.  The binary reading of the constitutional right to property must give way to more meaningful renditions, where the larger right to property is seen as comprising intersecting sub-rights, each with a distinct character but interconnected to constitute the whole. These sub-rights weave themselves into each other, and as a consequence, State action or the legislation that results in the deprivation of private property must be measured against this constitutional net as a whole, and not just one or many of its strands.

27. What then are these sub-rights or strands of this swadeshi constitutional fabric constituting the right to property? Seven such sub-rights can be identified, albeit non-exhaustive. These are:

i) duty of the State to inform the person that it intends to acquire his property - the right to notice, ii) the duty of the State to hear objections to the acquisition - the right to be heard, iii) the duty of the State to inform the person of its decision to acquire - the right to a reasoned decision, iv) the duty of the State to demonstrate that the acquisition is for public purpose - the duty to acquire only for public purpose, v) the duty of the State to restitute and rehabilitate- the right of restitution or fair compensation, vi) the duty of the State to conduct the process of acquisition efficiently and within prescribed timelines of the proceedings - the right to an efficient and expeditious process, and vii) final conclusion of the proceedings leading to vesting - the right of conclusion.

28. These seven rights are foundational components of a law that is tune with Article 300A, and the absence of one of these or some of them would render the law susceptible to challenge. The judgment of this Court in K.T. Plantations (supra)9 declares that the law envisaged Under Article 300A must be in line with the overarching principles of Rule of law, and must be just, fair, and reasonable. It is, of course, precedentially sound to describe some of these sub-rights as 'procedural', a nomenclature that often tends to undermine the inherent worth of these safeguards. These seven sub-rights may be procedures, but they do constitute the real content of the right to property Under Article 300A, non- compliance of these will amount to violation of the right, being without the authority of law.

29. These sub-rights of procedure have been synchronously incorporated in laws concerning compulsory acquisition and are also recognised by our constitutional courts while reviewing administrative actions for compulsory acquisition of private property. The following will demonstrate how these seven principles have seamlessly become an integral part of our Union and State statutes concerning acquisition and also the constitutional and administrative law culture that our courts have evolved from time to time.

30. Following are the seven principles:

30.1. The Right to notice: (i) A prior notice informing the bearer of the right that the State intends to deprive them of the right to property is a right in itself; a linear extension of the right to know embedded in Article 19(1)(a). The Constitution does not contemplate acquisition by ambush. The notice to acquire must be clear, cogent and meaningful. Some of the statutes reflect this right.

30.2. The Right to be heard: (i) Following the right to a meaningful and effective prior notice of acquisition, is the right of the property-bearer to communicate his objections and concerns to the authority acquiring the property. This right to be heard against the proposed acquisition must be meaningful and not a sham.

30.3. The Right to a reasoned decision: i) That the authorities have heard and considered the objections is evidenced only through a reasoned order. It is incumbent upon the authority to take an informed decision and communicate the same to the objector.

30.4. The Duty to acquire only for public purpose: (i) That the acquisition must be for a public purpose is inherent and an important fetter on the discretion of the authorities to acquire. This requirement, which conditions the purpose of acquisition must stand to reason with the larger constitutional goals of a welfare state and distributive justice.

30.5. The Right of restitution or fair compensation: (i) A person's right to hold and enjoy property is an integral part to the constitutional right Under Article 300A. Deprivation or extinguishment of that right is permissible only upon restitution, be it in the form of monetary compensation, rehabilitation or other similar means. Compensation has always been considered to be an integral part of the process of acquisition.

30.6. The Right to an efficient and expeditious process: (i) The acquisition process is traumatic for more than one reason. The administrative delays in identifying the land, conducting the enquiry and evaluating the objections, leading to a final declaration, consume time and energy. Further, passing of the award, payment of compensation and taking over the possession are equally time consuming. It is necessary for the administration to be efficient in concluding the process and within a reasonable time. This obligation must necessarily form part of Article 300A.

30.7. The Right of conclusion: (i) Upon conclusion of process of acquisition and payment of compensation, the State takes possession of the property in normal circumstances. The culmination of an acquisition process is not in the payment of compensation, but also in taking over the actual physical possession of the land. If possession is not taken, acquisition is not complete. With the taking over of actual possession after the normal procedures of acquisition, the private holding is divested and the right, title and interest in the property, along-with possession is vested in the State. Without final vesting, the State's, or its beneficiary's right, title and interest in the property is inconclusive and causes lot of difficulties. The obligation to conclude and complete the process of acquisition is also part of Article 300A.

31. The seven principles which we have discussed are integral to the authority of law enabling compulsory acquisition of private property. Union and State statutes have adopted these principles and incorporated them in different forms in the statutes provisioning compulsory acquisition of immovable property. The importance of these principles, independent of the statutory prescription have been recognised by our constitutional courts and they have become part of our administrative law jurisprudence.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6466 of 2024 

Kolkata Municipal Corporation and Ors. Vs. Bimal Kumar Shah and Ors.

Hon'ble Judges/Coram:

Pamidighantam Sri Narasimha and Aravind Kumar, JJ.

Author: Pamidighantam Sri Narasimha, J.

Decided On: 16.05.2024

Citation: MANU/SC/0450/2024.

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Bombay HC: Magistrate Must Conduct Enquiry U/S 202 of CRPC Before Summoning Accused Living Beyond its Jurisdiction

 In order to have implementation of the orders issued

by the Constitution Bench in suo motu Writ Petition dated

16/4/2021, the Registrar General of the Bombay High Court has

also issued a circular on 27/1/2022, clearly issuing the following

directions:-

“2 On receipt of any complaint under Section 138 of

N.I. Act, wherever it is found that any accused is resident of

the area beyond the territorial jurisdiction of the magistrate

concerned, an inquiry shall be conducted by the magistrate

to arrive at sufficient grounds to proceed against the

accused as prescribed under Section 202 of Cr.P.C.

3 While conducting any such inquiry under section

202 of Cr.P.C, the evidence of witnesses on behalf of the

complainant shall be permitted to be taken on affidavit. In

suitable cases, the magistrate may restrict the inquiry to

examination of documents without insisting for examination

of witnesses for satisfaction as to the sufficiency of grounds

for proceeding under the said provision”.

7 In our considered view, the question, referred to the

larger Bench, is already answered by the Constitution Bench of

the Apex Court as above, and therefore, we do not deem it

necessary to answer the reference. {Para 6}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. 1344 OF 2010

Bansilal S. Kabra Vs Global Trade Finance Limited & Anr

CORAM: DEVENDRA KUMAR UPADHYAYA, C.J,

BHARATI DANGRE, J & ARIF S. DOCTOR, J

DATED : 16th JANUARY 2024.

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Whether Summary suit based on settled account or Account stated is maintainable?

 In so far as the 'settled account is concerned,' it is no doubt true as noticed by the learned single Judge, that the various judgments adverted to, for holding that the summary suit would lie on a settled account, either of the Privy Council or of the Supreme Court did not arise from suits filed as summary suits. However, after the judgment of the Privy Council (Elvira L. Rodrigues) Sequeira (supra) which has been considered by the Supreme Court in Hiralal & Ors. (supra), a summary suit on a settled account, duly confirmed by the Defendant is maintainable as it is an acknowledgement by the Defendant in the ledger in which mutual accounts have been entered and the accounts settled between them. Such settling of accounts gives rise to a written contract on a fresh cause of action, with an implied promise to pay the amount settled. A summary suit would therefore lie on 'Settled accounts duly confirmed by the defendants. Issue (1) is answered accordingly.{Para 29}

IN THE HIGH COURT OF BOMBAY

Summons for Judgment No. 1117 of 2003 in Summary Suit No. 1551 of 2003 

 Jyotsna K. Valia and Ors. Vs. T.S. Parekh and Co. and Ors.

Hon'ble Judges/Coram:

F.I. Rebello, V.K. Tahilramani and Abhay Shreeniwas Oka, JJ.

Author: F.I. Rebello, J.

Decided On: 26.04.2007

Citation: citations: 2007 (3) BomCR 772, 2007 (4) CTC 257, 2007 (4) MhLj 517,MANU/MH/0252/2007.

Read full Judgment here: Click here.

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Supreme Court: Day Of Remand Should Be Included For Considering Default Bail Claim

In Ravindran(supra) and Bikramjit (supra), which followed the Constitution Bench in Sanjay Dutt(supra) it was rightly held that if the Accused persons avail their indefeasible right to default bail before the chargesheet/final report is filed, then such right would not stand frustrated or extinguished by any such subsequent filing. We therefore declare that the stipulated 60/90 day remand period Under Section 167 Code of Criminal Procedure ought to be computed from the date when a Magistrate authorizes remand. If the first day of remand is excluded, the remand period, as we notice will extend beyond the permitted 60/90 days' period resulting in unauthorized detention beyond the period envisaged Under Section 167 Code of Criminal Procedure. In cases where the chargesheet/final report is filed on or after the 61st/91st day, the Accused in our considered opinion would be entitled to default bail. In other words, the very moment the stipulated 60/90 day remand period expires, an indefeasible right to default bail accrues to the Accused.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 701-702 of 2020

Decided On: 27.03.2023

Enforcement Directorate, Government of India Vs. Kapil Wadhawan and Ors.

Hon'ble Judges/Coram:

K.M. Joseph, Hrishikesh Roy and B.V. Nagarathna, JJ.

Citation:  MANU/SC/0329/2023,

Author: Hrishikesh Roy, J.

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Bombay HC: Person belonging to Scheduled Caste and Scheduled Tribes are entitled to protection in any other part of country, where offence is committed even if he is not recognized in that part

 The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is a social reformatory legislation enacted for the purpose of combating special category of crimes and, hence, it requires an interpretation, which would attain the purpose and not defeat it. The reliance placed upon the two Constitution Bench judgments, identifying the 'Scheduled Castes' and 'Scheduled Tribes' and the act of atrocities, by referring to the principle propounded in those judgments is completely misplaced as the geographical limitation under Articles 341 and 342 of the Constitution, which is conveyed by use of the words "in relation to that State" or "Union territory" are confined for conferring the benefits/privileges like reservation, employment or education and in no case, it shall be applied mutatis mutandis, when it comes to commission of atrocities upon the persons belonging to the said class for the simple reason that conferring privileges is an affirmative action intended for upliftment of these classes, but for protecting their very existence and identity, the bar of territorial arena cannot be applied.

By restricting the identity of a Scheduled Caste or Scheduled Tribe only in relation to the State of his origin, would even defeat their fundamental right under Article 19 (1)(d) and (e) of the Constitution, as it would indirectly require them to be bound to their State of origin, with no chance of taking steps to progress themselves by stepping outside. This definitely would cause more harm to the identified class than advancing them to compete with members of the higher class and assisting them in achieving equality, as enshrined in the Constitution.Hence, we negate the submissions advanced by Dr. Chandrachud on Issue A. {Para 71}

73. In the wake of the aforesaid discussion, we answer the reference, as under :-

-: ISSUE A :-

The scope of the Scheduled Castes and the Scheduled Tribes ( Prevention of Atrocities Act), 1989 cannot be restricted to a person belonging to a Scheduled Caste or Scheduled Tribe to the State or Union Territory in which he is declared as Scheduled Caste or Scheduled Tribe only, but he is also entitled to the protection under the Act, in any other part of the country, where the offence is committed, though he is not recognized as Scheduled Caste or Scheduled Tribe in that part.

IN THE HIGH COURT OF BOMBAY

Criminal Appeal Nos. 949 of 2022, 

Decided On: 01.09.2023

Sanjay Krushna Katkar Vs. The State of Maharashtra and Ors.

Bench: R.P. Mohite-Dere, Bharati Dangre, N. J. Jamadar

Author: Bharati H. Dangre, J.

Citation: AIR2023Bom317,MANU/MH/3482/2023.

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Supreme Court : The Day on which accused is remanded by Magistrate should be counted for the purpose of default bail

 Thus, the default bail Applications were filed well before the chargesheet. In Ravindran(supra) and Bikramjit (supra), which followed the Constitution Bench in Sanjay Dutt(supra) it was rightly held that if the Accused persons avail their indefeasible right to default bail before the chargesheet/final report is filed, then such right would not stand frustrated or extinguished by any such subsequent filing. We therefore declare that the stipulated 60/90 day remand period Under Section 167 Code of Criminal Procedure ought to be computed from the date when a Magistrate authorizes remand. If the first day of remand is excluded, the remand period, as we notice will extend beyond the permitted 60/90 days' period resulting in unauthorized detention beyond the period envisaged Under Section 167 Code of Criminal Procedure. In cases where the chargesheet/final report is filed on or after the 61st/91st day, the Accused in our considered opinion would be entitled to default bail. In other words, the very moment the stipulated 60/90 day remand period expires, an indefeasible right to default bail accrues to the Accused.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 701-702 of 2020

Decided On: 27.03.2023

Enforcement Directorate, Government of India  Vs. Kapil Wadhawan and Ors.

Hon'ble Judges/Coram:

K.M. Joseph, Hrishikesh Roy and B.V. Nagarathna, JJ.

Author: Hrishikesh Roy, J.

Citation: MANU/SC/0329/2023,(2024) 7 SCC 147

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What is basic concept of Account stated?

With that, let us consider what constitutes a "settled account" or "account stated". Before further discussing the issue, it would be relevant to refer to some judgments which, in our opinion, shed light on the issue and can be said to have conclusively decided that aspect of the matter. In Tulsiram Shrikisan Marwadi v. Zaboo Bhima Shankar MANU/NA/0041/1947, learned Division Bench was considering as to what would be an account stated. After relying on various judgments, the Court observed as under:

that a real account stated is a very different thing from an acknowledgment. In a real account stated there is consideration in the shape of an agreement that items on one side of the account be taken as paid by items on the other side. In an account stated it does not matter if some of the items are time-barred. It would be different thing if all the items are time-barred, and we see no reason to depart from the view expressed on this point in Ganesh prasad v. Rambati Bai I.L.R. (1942) Nag.369 : MANU/NA/0022/1941 .

The Privy Council had an occasion to deal with the issue in the case of (Elvira Rodrigues) Siqueira v. (Godnicalo Hypolito Construction) Noronha A.I.R. 1934 P C 144. The Privy Council was considering Section 25(3) of the Contract Act, 1872 and Article 64 of the Limitation Act, 1908 whether - a suit could be maintained on a settled account. It is in that context, that Lord Atkin, speaking for the Privy Council, held as under:

Their Lordships think that what has been forgotten is that there are two forms of account stated. An account stated may only take the form of a mere acknowledgment of a debt, and in those circumstances, though it is quite true it amounts to a promise and the existence of a debt may be inferred, that can be rebutted, and it may very well turn out that there is no real debt at all, and in those circumstances there would be no consideration and no binding promise.

But on the other hand, there is another form of account stated which is a very usual form as between merchants in business in which the account stated is an account which contains entries on both sides, and in which the parties who have stated the account between them have agreed that the items on one side should be set against the items upon the other side and the balance only should be paid; the items on the smaller side are set off and deemed to be paid by the items on the larger side, and there is a promise for good consideration to pay the balance arising from the fact that the items have been so set off and paid in the way described.

This judgment was considered by the Supreme Court, in Gordon Woodroffe & Co. (Madras) Ltd. v. Shaikh M.A. Majid & Co. A.I.R. 1976 Sup Cou 181. The second question in issue before the Supreme Court was whether there was a settled account between the parties and whether it was open for the Plaintiff to reopen it. It was an admitted fact that to the statement of accounts, no objections were raised by the Plaintiff any time nor was a single document produced to show that the Plaintiff ever wrote to the Defendant raising an objection to the statements of account. At one stage, the Plaintiff sent a memorandum to the Defendant, accepting the accuracy of the accounts. It is in that context that the Court was considering the concept of "account settled" or "stated" We may gainfully refer to a portion of paragraph 14:

(14) The legal position is that the accounts are settled or stated if they are submitted and accepted as correct by the other side to whom the accounts have been rendered. Such a statement of accounts need not be in writing, nor is it necessary that before the accounts are settled, they should be gone into by the parties and scrutinised and supported by vouchers. It is sufficient if the accounts are accepted and such acceptance may be inferred by conduct of the parties. As observed in Daniell's Chancery Practice, eighth edition, Vol. I, p. 419:

The mere delivery of an account will not constitute a stated account without some evidence of acquiescence which may afford sufficient legal presumption of a settlement.

There is also the following passage in Bullenn and Leake's Precedents of Pleadings ninth edition, p. 584:

It is not enough for the accounting party merely to deliver his account; there must be some evidence that the other party has accepted it as correct. But such acceptance need not be express, contemporaneous or subsequent conduct may amount to a sufficient acquiescence.

After so observing, considering the contention of the Defendants that there has been a stated or settled account, the Court in paragraph 15 held as under:

In this connection it is necessary to state that the expression "account stated" has more than one meaning. It sometimes means a claim to payment made by one party and admitted by the other to be correct. An account stated in this sense is no more than an admission of a debt out of Court: while it is no doubt cogent evidence against the admitting party, and throws upon him the burden of proving that the debt is not due, it may, like any other admission, be shown to have been made in error. Where the transaction is of this character, it makes no difference whether the account is said to be "stated" or to be "stated and agreed": the so-called agreement is without consideration and amounts to no more than an admission. There is, however, a second kind of account stated where the account contains items both of credit and debit, and the figures on both sides are adjusted between the parties and a balance stuck.

Accounts stated which contains entries on both sides and parties who have stated the account between them have agreed that the items on one side should be set off against the items on the other side and the balance amount should be paid, would amount to a written contract for good consideration arising from the fact that the items have been so set off. Such an account stated gives cause to a contract in writing on a fresh cause of action, with an implied promise to pay. {Para 25}

 IN THE HIGH COURT OF BOMBAY

Summons for Judgment No. 1117 of 2003 in Summary Suit No. 1551 of 2003 

 Jyotsna K. Valia and Ors. Vs. T.S. Parekh and Co. and Ors.

Hon'ble Judges/Coram:

F.I. Rebello, V.K. Tahilramani and Abhay Shreeniwas Oka, JJ.

Author: F.I. Rebello, J.

Decided On: 26.04.2007

Citation: citations: 2007 (3) BomCR 772, 2007 (4) CTC 257, 2007 (4) MhLj 517,MANU/MH/0252/2007

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Should police investigate a Criminal case as per the order passed by Magistrate U/S 156 of CRPC obtain his permission to arrest the accused?

 (i) Whether the police have to approach the learned Magistrate and take orders from him before arresting the accused against whom FIR is registered pursuant to the orders issued by the learned Magistrate under Section 156(3) of the Criminal Procedure Code, 1973?

 Ans. It is neither obligatory nor mandatory for a Police Officer to obtain the leave of the Court before arresting an accused against whom FIR is registered in pursuance of the order passed by the learned Magistrate under Section 156(3) of the Criminal Procedure Code, 1973. Certainly, we would hasten to add that exercise of discretion by the arresting officer should be exercised with greater sensitivity and in accordance with the settled canon of criminal jurisprudence, while keeping the facts and circumstances of each case in mind. It needs to be remembered by the Investigating agencies that order under Section 156(3) may be passed by the Court as a result of failure to perform its duty on the part of the investigating agencies.

(ii) Whether the police can exercise the powers of arrest under Section 41 of the Criminal Procedure Code, 1973, without intervention of the Court?

 Ans. A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. In fact, answer to this question is squarely provided in the judgment of the Supreme Court in M.C. Abraham (supra).

Bombay High Court

Laxminarayan Vishwanath Arya vs The State Of Maharashtra Through ... on 19 July, 2007

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Leading Supreme court judgment laying down procedure for expeditious trial of Criminal cases

 The court is of the opinion that the Draft Rules of Criminal Practice, 2021, (which are annexed to the present order, and shall be read as part of it) should be hereby finalized in terms of the above discussion. The following directions are hereby issued:

(a) All High Courts shall take expeditious steps to incorporate the said Draft Rules, 2021 as part of the rules governing criminal trials, and ensure that the existing rules, notifications, orders and practice directions are suitably modified, and promulgated (wherever necessary through the Official Gazette) within 6 months from today. If the state government’s co-operation is necessary in this regard, the approval of the concerned department or departments, and the formal notification of the said Draft Rules, shall be made within the said period of six months.

(b) The state governments, as well as the Union of India (in relation to investigating agencies in its control) shall carry out consequential amendments to their police and other manuals, within six months from today. This direction applies, specifically in respect of Draft Rules 1-3. The appropriate forms and guidelines shall be brought into force, and all agencies instructed accordingly, within six months from today. {Para 19}

Supreme Court directs High Courts To Adopt Draft Rules Of Criminal Practice Within 6 Months

 REPORTABLE

IN THE SUPREME COURT OF INDIA

ORIGINAL JURISDICTION

SUO MOTO WRIT (CRL) NO.(S) 1/2017

IN RE: TO ISSUE CERTAIN GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS 

Vs THE STATE OF ANDHRA PRADESH 

Coram: S.A. BOBDE J, L. NAGESWARA RAO J, S. RAVINDRA BHAT J

Dated: April 20, 2021.

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Supreme Court: Tests to determine when writ petition is maintainable or not if there is a breach of contractual obligations by state authorities

 In the cases before us the contracts do not contain any statutory terms or obligations and no statutory power of obligation which could attract the application of Article 14 of the Constitution is involved here. Even in cases where the question is of choice or consideration of compet- ing claims before an entry into the field of contract facts have to be investigated and found before the question ,of a violation of Article 14 could arise. If those facts are disputed and require assessment of evidence the correctness of which can ,only be tested satisfactorily by taking de- tailed evidence, involving examination and cross-examina- tion of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article '226 of the Constitution. Such proceedings are summary proceedings reserved for extraordinary cases where the exceptional and what are described as, perhaps not quite accurately, "pre- rogative" powers of the Court are invoked. We are certain that the cases before us are not such in which powers under Article 226 of the Constitution could 'be invoked. The Patna High Court had, very rightly divided the types of cases 'in which breaches of alleged obligation by the State units agents can be set up into three types. These were stated as follows :--

"(i) Where a petitioner makes a grievance of breach of promise on the part of the State in cases where an assurance or promise made by the State he has acted to his prejudice and predicament, but the agree- ment is short of a contract within the meaning of article 299 of the Constitution;

(ii) Where the contract entered into between the person aggrieved and the State is in exercise of a statutory power under certain Act or Rules framed thereunder and the petitioner alleges a breach on the pan of State; and

(iii) Where the contract entered into between the State, and the person aggrieved is non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract, and the petitioner complains about breach of such contract by the State."

It rightly held that the cases such as Union of India v.

M/s. AngloAfghan Agencies,(1) and Century Spinning & Manu- facturing Co. Ltd. v. Ulhasnagar Municipal Council(2); and Robertson v. Minister of Pensions,(3) belong to the first category where it could be held that public bodies or the State are as much bound as private individual are to carry out obligations incurred by them because parties seeking to bind the authorities have altered their position to their disadvantage or have acted to their detriment on the strength of the representations made by these authorities. The High Court thought that in such cases the obligation could sometimes be appropriately enforced on a Writ Petition even though the obligation was equitable only. We do not propose to express an opinion here on the question whether such an obligation could be enforced in proceedings under Article 226 of the Constitution now. It. is enough to observe that the cases before us do not belong to this category.

The Patna High Court also distinguished cases which belong to the second category, such as K.N. Guruswami v. The State of Mysore;(4) ' D.F. South Kheri v. Ram Sanehi Singh;(5) and M/s. Shree Krishna Gyanoday Sugar Ltd. v. The State of Bihar,(6) where the breach complained of was of a statutory obligation. It correctly pointed out that the cases before us do not belong to this class either. It then, very rightly, held that the cases now before us should be placed in the third category where questions of pure alleged breaches of contract are involved. It held, upon the strength of Umakant Saran v. The State of Bihar;(7) and Lekhrai Sathram Das v.N.M. Shah;(8) and B.K. Sinha v. State of Bihar(9) that no writ order can issue under Article 226 of the Constitution in such cases "to compel the authorities to remedy are a breach of contract pure and simple".

Learned counsel for the appellants has, however, relied upon a passage from Lekhraj Sathram Das's case (supra) where this Court observed (at p. 231);

" .... until and unless in the breach is involved violation of certain legal and public duties or violation of statutory duties to the remedy of which the petitioner is entitled by issuance of a writ of mandamus, mere breach of contract cannot be remedied by the Court in exercise of its powers under Article 226 of the Constitution".

Learned counsel contends that in the cases before us breaches of public duty are involved. The submission made before us is that, whenever a State or its agents or offi- cers deal with the citizen, either when making a transaction or, after making it, acting in exercise of powers under the terms of contract between the parties, there is a dealing between the State and the citizen which involves performance of "certain legal and public duties." If we were to accept this very wide proposition every case of a breach of con- tract by the State or its agents or its officers would call for interference under Article 226 of the Constitution. We do. not consider this to be a sound proposition at all. 

 None of these cases lays down that, when the State or the officers purport to operate within the contractual field and the only grievance of the citizen could be that the contract between the parties is broken by the action complained of, the appropriate remedy is by way of a petition under Article 226 of the Constitu- tion and not an ordinary suit. There is a formidable array of authority against any such a proposition. In Lekhraj Sathramdas Lalwani v. M.M. Shah, Deputy Custodian-cum- Managing Officer, Bombay & Ors., (supra) this Court said (at p. 337);

"In our opinion, any duty or obligation falling upon a public servant out of a con- tract entered into by him as such public servant cannot be enforced by the machinery of a writ under Art. 226 of the Constitution".

In Banchhanidhi Rath v. The State of Orissa & Ors(1) this Court declared (at p. 845):

"If a right is claimed in terms of a contract such a right cannot be enforced in a writ petition."

In Har Shankar & Ors. etc. etc. v. The Dy. Excise & Taxation Commr. & Ors.,(2) a Constitution Bench of this Court ob- served (at p. 265): "The appellant have displayed ingenuity in their search for invalidating circumstances but a writ petition is not an appropriate remedy for impeaching con- tractual obligations".

Supreme Court of India

Radhakrishna Agarwal & Ors vs State Of Bihar & Ors on 17 March, 1977

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