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Grant of stay of conviction is not a rule, but an exception to be decided on facts and circumstances of cases- Delhi High Court

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Case title: Daya Nand Chandela v. State

Case no: CRL.A. 835/2010 & CRL.M. (BAIL) 746/2024

Dated on: 10May

Quorum: Hon’ble Ms. Justice Swarana Kanta Sharma

Facts of the case:

The applicant/appellant is seeking suspension of conviction order passed by the learned Special Judge, NDPS, Rohini, Delhi the cause of action which is arising out of FIR, registered at Police Station Tilak Nagar, Delhi for offences punishable under Section 452/307/34 of the Indian Penal Code, 1860 (‘IPC’). On 11.12.2008, at about 4:10 pm, Tilak Nagar Police Station received information regarding an attack on the residence of an MLA and by the time the police arrived, injured/victims had already been taken to DDU Hospital, Delhi. Mr.Sudesh Chandela who is the complainant/victim/ informed the police that they had lent Rs. 50,000/- to one Sufi, who absconded without repaying the amount. The complainant rented jhuggi of Sufi and thereafter, the neighbours of the complainant informed that one Manoj who is the co-accused herein had come and put a lock on the said jhuggi which prompted the complainant Sudesh Chandela and his companion to go to Dayanand Chandela’s residence who is the present applicant/appellant along with Manoj. Both of them confronted the accused persons regarding the lock they put on the jhuggi who in turn explained that they also had financial claims against Sufi and since he had not been paying the said amount, they had locked his jhuggi. During the said conversation, there was heated arguments and thereafter, Dayanand Chandela arrived at the scene and took out a sword. The co-accused Nawab was armed with a sword, while Manoj and Meghraj carried sticks with them. Upon seeing the escalation of the issue, Sudesh Chandela and his other companions fled towards their house for safety. However, Dayanand Chandela, along with the three other co-accused followed them and struck Sudesh Chandela with a sword blow, which Sudesh managed to block. The co-accused Nawab, attacked him with a sword, and other co-accused Manoj and Meghraj assaulted with sticks. The accused persons targeted Sudesh’s father Harpal, his uncle Ram Gopal and his brother Ravinder who had intervened to protect the complainant. Thereafter, FIR was registered and after trial, the accused persons i.e; Nawab, Manoj, Megh Raj and the present applicant Dayanand Chandela were convicted by the learned Trial Court.  

Issue:

Whether the Applicant is entitled to get the suspension/stay of conviction order.  

Legal provisions:

Section 452- House tresspass

Section 307- of the IPC- attempted murder.  

Contentions of the appellant:

The present applicant is aged about 70 years and is a distinguished public figure. The applicant wishes to contest the Lok Sabha Elections 2024 to be held in Delhi on 25.05.2024, and the last date for filing of nomination is 06.05.2024. The present applicant has clean antecedents and has never been convicted. The applicant has won Delhi and Rajouri Garden assembly elections. In the year 2013, when the applicant submitted nomination forms, the Returning Officer on account of judgment and the order of sentence disqualified him. Due to the order of conviction dated 03.06.2010, he cannot contest the upcoming Lok Sabha General Elections, 2024 due to the bar imposed by Section 8(3) of the Representation of the People Act, 1951. There are substantial legal and factual questions involved in the present appeal. It would be in the interest of justice to allow him to contest the upcoming Lok Sabha elections by suspending his conviction.  

Contentions of the respondent:

The applicant had earlier filed two applications for suspension of order of conviction dated 03.06.2010 i.e., in the year 2015 which was dismissed on 15.01.2015, and the other application in the year 2019 which was also dismissed on 10.01.2020. The Trial Court has rightly convicted the appellant and appreciated the evidence in detail. There are no grounds at this stage to come to the conclusion that the appellant is innocent and the appeal is going to result in acquittal. The evidence on record proved the guilt and therefore there are no grounds for suspension of the conviction. Thus, merely because the present applicant intends to contest the elections cannot be a ground to suspend the conviction.  

Courts analysis and judgement:

The Court noted judgment dated 15.01.2015 passed by the Predecessor Bench, wherein a similar application was moved, and the predecessor Court concluded that the application has no merit. The Court ruled that Petitioner has not made out a case where an order for suspension/ stay against conviction could be granted. The case does not appear to be of exceptional circumstances where if stay is not granted would result in causing injustice to the Petitioner. Supreme Court in Navjot Singh Sidhu held that “grant of stay of conviction is not a rule, but an exception to be resorted to in rare cases”. The appellant contested the election previously in the year 2008 and thereafter he didn’t contest elections. Hence, the application was dismissed. In the second application filed in 2019, the Court held that petitioner could not make out grounds for suspension of his conviction order so as to allow him to contest the elections. The grievance of the applicant is that he has been convicted under Sections 452/307/34 of IPC and has been sentenced to undergo three years imprisonment. The appeal, preferred against the conviction order is still pending and the applicant has once again approached the Court praying to suspend the conviction order to enable him to contest the upcoming Lok Sabha Elections 2024. In Afjal Ansari v. State of Uttar Pradesh, the Hon’ble Supreme Court has held that to suspend the conviction of an individual, the primary factors to be looked are the peculiar facts and circumstances of the case, where the failure to grant stay would lead to injustice. In the present case, the applicant is sentenced to undergo imprisonment for three years by the Trial Court after conclusion of trial. It will be inappropriate to discuss the case for assessing the merits at this stage, as that would mean premature adjudication of the main appeal. The present application is the third application for the same reason and the Predecessor Benches have passed detailed judgments after recording reasons to dismiss the applications. The applicant has not challenged either of the Orders dated 15.01.2015 or 10.01.2020. In case the applicant was aggrieved by the dismissal, he could have approached the Supreme Court by filing SLP which he has not done. The applicant had filed an application on 15.01.2020 for early hearing but the said application was withdrawn on 17.01.2020 which gives the impression that the applicant was not interested in getting his appeal heard expeditiously. The applicant by way of this application is again seeking suspension of the order of conviction on the ground that he wishes to contest the upcoming Lok Sabha Elections 2024, which according to the applicant, is a fresh ground and circumstance thereby relying on the case of Dilip Ray. The facts and circumstances of the said case is different for the reason that there the application seeking suspension of conviction was not rejected. If the applicant genuinely wished to contest the upcoming Lok Sabha Elections, he could have filed the present application earlier and could have sought for early hearing. Further, the applicant has not approached the Court with clean hands, since he failed to disclosed that he had filed two similar applications on earlier occasions and the same was dismissed. Therefore, this is not a fit case to suspend order dated 03.06.2010. There are no extraordinary circumstances to allow the present application. Hence, the application stands dismissed.

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Separate Framing of Issues Not Fatal If Appellate Court Already Addressed Them: SC

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Case title: Mrugendra Indravadan Mehta and Ors v. Ahmedabad Municipal Corporation.

Case no: Civil Appeal Nos. 16956-16957 OF 2017

Dated on: May 10th, 2024

Quorum: Justice A.S. Bopanna and Justice Sanjay Kumar.

Facts of the case:

The two appeals arise out of the common judgment dated 18.06.2013 passed by a Division Bench of the High Court of Gujarat at Ahmedabad. The Division Bench allowed the first appeal filed by the Ahmedabad Municipal Corporation and dismissed the cross-objection filed by the respondents. Aggrieved by the same, the said respondents filed the present appeals. The suits were filed against the Corporation seeking compensation of ₹1,63,97,673/- with interest thereon @ 18% p.a. or, in the alternative, allotment of land, i.e., an extent of 974 sq. mts., in any Town Planning Scheme in the western zone of Ahmedabad. The Trial Court, decreed the suit by accepting the alternative prayer to allot an extent of 974 sq. mts. In any Town Planning Scheme in the western zone but rejected the compensation claim of ₹1,63,97,673/- with interest thereon and the plaintiffs were directed to repay the amount of compensation received by them @ ₹25/- per sq. mt. The Corporation preferred the subject first appeal before the High Court while the plaintiffs filed their cross-objection therein. The High Court held that it was not open to the Plaintiffs to claim any damages by accepting the smaller plot and the compensation for the shortfall of 974 sq.mts. without protest.

Issues:

Can a plot owner who surrendered his land pursuant to a Town Planning Scheme, be allotted any land after reconstitution of the plots?

Legal provisions:

Various provisions of Town Planning Schemes Gujarat Town Planning and Urban Development Rules, 1979.

Contentions of the appellant:

The plaintiff/ Appellant father was the owner of original Plot Nos. 144, 150/P and 151/P in Survey Nos., admeasuring 19823 sq. yds./16575 sq. mts. The Corporation prepared Town Planning Scheme No.6, Paldi, where the plaintiffs’ father was required to contribute 21.40% of his lands, i.e., 4247 sq. yds./3552 q. mts., to the Corporation for public purposes. For the remaining extent, the Corporation allotted two separate plots, viz., Plot No. 478, measuring 11686 sq. yds and Plot No. 463, measuring 3890 sq. yds. The vacant possession of Plot No. 478 was delivered to the plaintiffs’ father but the Corporation failed to deliver possession of Plot No. 463 as it was occupied by slum dwellers. The Corporation then prepared a second varied scheme whereunder, Plot No. 463 was taken for the purpose of slum upgradation and the plaintiffs were offered Plot No. 187, measuring 2724 sq. yds thereby reducing the land allotment by 974 sq. mts. The compensation awarded to them for the shortfall of 974 sq. mts. was meagre. The plaintiffs were constrained to file for compensation for the damages as they had suffered huge monetary losses as they could not enjoy the property since 1963 and thus prayed for compensation of ₹1,63,97,673/-

Contentions of the respondent:

The plaintiffs were paid compensation @ ₹25/- per sq. mt. for shortfall of land under the scheme. The plaintiffs accepted possession of Final Plot No. 187 and the compensation, without protest and without challenging the same. The grievance was required to be preferred under Section 54 of the Act of 1976. The plaintiffs could not pray for compensation on the basis of the original Town Planning Scheme for the reason that upon variation of the scheme, the original scheme ceased, and the varied scheme came into existence.

Courts analysis and judgement:

The High Court has set out all the issues framed by the Trial Court in the body of the judgment and was, therefore, fully conscious of all the points that it had to consider in the appeal. Further, we do not find that any particular issue that was considered by the Trial Court was left out by the High Court while adjudicating the appeal. In effect, we do not find merit in the contention that the impugned judgment is liable to be set aside on this preliminary ground, warranting reconsideration of the first appeal by the High Court afresh. When allotment to plaintiff was modified by the second variation of Town Planning Scheme, where the plaintiffs were allotted Plot No. 187 which was of a lesser area but was silently accepted by them and they neither chose to seek implementation of the original scheme, where under they were allotted a larger plot, or challenge the varied 36 scheme, whereby they were given a smaller plot. Having accepted the plot and upon variation of the scheme, the plaintiffs cannot seek to reopen the negligence and delay, on the part of the Corporation. Upon the preparation or variation of a Town Planning Scheme, the rights in the earlier plots of land stands extinguished and rights accrued, if any, becomes extinct then it cannot be the basis for a later cause of action. The plaintiffs did not choose to adduce any evidence in support of their claim for the quantified damages of 1,63,97,673/-. Though it has been contended that the plaintiffs never actually received the compensation for the shortfall of 974 sq. mts. @ 25/- per sq. yd., but pursuant to the judgment of the Trial Court, the plaintiffs deposited the sum of 24,350/-, being the compensation for 974 sq. mts. @ ₹ ₹25/- per sq. mt., as directed by the Trial Court. If they did not receive such compensation, they ought not to have abided by the direction of the Trial Court and deposited that amount. This voluntary act precludes them from contending that compensation was never paid to them and that they had deposited the amount as it was only a paltry sum. The contention of the plaintiffs that the Act of 1976 does not contemplate a second reduction in the reconstituted plot area cannot be accepted as Section 45 of the Act of 1976 deals with reconstitution of plots. In Prakash Amichand Shah and Ahmedabad Green Belt Khedut Mandal, it was held that a plot owner who has surrendered his original land for the purposes of the Town Planning, is not assured of allotment of a reconstituted plot in lieu thereof then in such case, he is entitled only to compensation. Section 71 postulates that in case of variation of the Town Planning Scheme is to be made then the same needs to be published and sanctioned in accordance with the provisions of the Act of 1976, which means that the entire exercise would be undertaken afresh, therefore, further reduction of a plot which is notified in the original Town Planning Scheme is implicit. The plaintiffs, were aware of the fact that Plot No. 187 allotted to them under the second varied Town Planning Scheme No. 6, Paldi, was of lesser area, and was accepted by them without any protest or raising right to a larger area and their conduct of depositing ₹24,350/- thereby implying receipt of the compensation amount foreclosed their right, to either challenge the allotment of a plot of lesser area or to seek more compensation. In this regard, it is noted that Section 54 provides an appellate remedy to the person aggrieved by any decision of the Town Planning Officer. The quantification of compensation was amenable to appellate review but the plaintiffs did not avail the said remedy. The plaintiffs’ main prayer was for quantified compensation, in the alternative, to allot land in the western zone of Ahmedabad. The Plaintiff did not adduce evidence values of the two final plots. The monetary value of two plots depend upon situation, development, proximity and access to the main road or highway, etc., and the same cannot be concluded without adequate proof. The High Court was fully justified in allowing the first appeal filed by the Corporation. There is no need for any interference. Therefore, the appeals are accordingly dismissed.  

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“Supreme Court Upholds High Court’s Bail Grant to Businessman in UAPA Case Linked to Maoist Funding”

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Case title: Union of India v. Mrityunjay Kumar Singh @ Mrityunjay @ Sonu Singh

Case no: Criminal appeal no. 2024 @ Special leave petition (Criminal) No.2024 @ Diary no. 27308 of 2023.

Dated on: May 10

Quorum:   Hon’ble Justice Mr. Pamidighantam Sri Narasimha and   Hon’ble Justice Mr Aravind Kumar.

Facts of the case:

On 22.11.2019, at about 8.00 PM, the patrolling party of Chandwa Police Station during their routine patrol had stopped at Lukuiya More where the banned terrorist organization CPI (Moist) fired indiscriminately at them resulting in the death of four (4) police personnel. The arms and ammunitions of the martyred police personnel was looted and after raising slogans the moist fled away. One of the home guards, Dinesh Ram, who escaped unhurt rushed to Chandwa Police Station and lodged a complaint which resulted in lodging FIR against 18 named and few unknown persons. The Central Government directed the NIA to take up investigation whereby FIR was re-registered for the offences under IPC, Arms Act and Unlawful Activities (Prevention) Act. The Respondent herein is one of the people apprehended who preferred appeal against the order of the Special Judge, NIA. The Union of India is now challenging High Court of Jharkhand, Ranchi order dated 30.01.2023 whereby the respondent appeal was allowed, and bail was extended thereby setting aside the order passed by the Special Judge, NIA, Ranchi.  

Issues:

Whether High Court was right in enlarging the bail of the Respondent?

Legal provisions:

Sections 120(B), 121, 121(A), 122, 147, 148, 149, 302, 307, 353, 395, 396 and 427 of IPC and under Sections 10, 13, 16, 17, 18, 20, 21, 38, 39 and 40 of UAP Act and under Sections 25(1B)(a), 26, 27 and 35 of the UAPA Act.

Contentions of the appellant:

The respondent was a key partner of a construction firm M/s Santosh Construction and was closely associated with Regional Commander of CPI-Maoist Ravindra Ganjhu and provided financial as well as logistics support for the terrorist activities. The respondent managed the terrorist fund by showing dubious entries and investments in his company/firm’s accounts. The respondent is directly connected to the incident which led to the killing of four (4) police personnel of the Jharkhand Police. The search at the house of the respondent resulted in recovering unaccounted cash of Rs.2.64 crores for which there was no justifiable explanation. There are other three (3) cases registered against the respondent which gives sufficient grounds to reject the bail. The respondent and his associates are threatening the life of the complainant and pressurizing him to withdraw the case. The respondent is an influential person and would try to threaten or influence witnesses.  

Contentions of the respondent:

The conditional bail was granted on 30.01.2023 and even after lapse of more than 1 year and 3 months, there is no allegation of violation of bail order. The prosecution is seeking for setting aside the impugned order for the reason that respondent is involved in three (3) cases apart from the case registered by NIA. The case registered by Chandwa PS has resulted in acquittal and in the case No.108 of 2015, the respondent has been enlarged on bail by the High Court of Jharkhand. In the case No.4 of 2020, the respondent has been granted anticipatory bail by the High Court of Jharkhand. The purported criminal antecedent did not sway the mind of High Court while considering the prayer for grant of bail. The pendency of three (3) other cases would have no bearing for the continuation of the bail order granted in favour of the respondent.   


Courts analysis and judgement:

The High Court has scrutinized the entire material on record and has recorded a finding that name of the respondent did not figure in the initial FIR registered or in the statements of witnesses and most of the statements did not mention the respondent’s name. It is well settled position that an accused cannot be detained under the guise of punishing him by presuming the guilt. In Vaman Narain Ghiya v. State of Rajasthan, it was been held that the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the presumption of guilt. The broad probability of accused being involved in the committing of the offence alleged will have to be seen. In NIA v. Zahoor Ahmad Shah Watali, it was held that it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to opine that there are reasonable grounds for believing that the accused is “not guilty” of the alleged offence. The satisfaction to be recorded is that there are reasonable grounds for believing that the accusation against such person is “prima facie” true. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. The court must take into account the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. In an order granting bail, reasoning should demonstrate application of mind. In Puran v. Rambilas it was held that at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken. In Jayendra Saraswathi Swamigal v. State of T.N. it was held that the considerations to be weighed by the court while granting bail in non-bailable offences and they are — the nature and seriousness of the offence; the character of the evidence; circumstances peculiar to the accused; possibility of non-securing the presence of accused at the trial; apprehension of witnesses tampering; the larger interest of the public or the State. The elaborate examination or discussion of evidence is not required. The Court is only expected to record a finding of the probabilities of the involvement of the accused in the commission of an offence. The respondent has been ordered to be enlarged on bail by the High Court on 30.01.2023 upon conditions. The prosecution has no case that the stipulated conditions have been violated. In the absence of a strong prima facie case of violation of the bail order, it would not be appropriate to reverse or set aside order after a lapse of fifteen (15) months. In Himanshu Sharma v. State of Madhya Pradesh, it was held that considerations for grant of bail and cancellation of bails are different and if conditions of bail is misused or bail was granted in ignorance of statutory provisions or bail was obtained by playing fraud then bail granted to the accused can be cancelled. The arguments that the respondent is involved in three (3) other cases and by considering that the respondent has been enlarged on bail or is on anticipatory bail would reflect that respondent having been enlarged on conditional bail and the conditions stipulated have not been violated and the appellant not seeking for cancellation of the bail till date are prime reasons for not entertaining this appeal.There is no other overwhelming material on record to set aside the order granting bail which outweighs the liberty granted by the High Court under the impugned order. Hence, interference is not warranted. However, to allay the apprehension of the prosecution, the prosecution can seek for cancellation of the bail in the event any of the conditions being violated by the respondent. The observations made is restricted to the consideration of the prayer for bail and the jurisdictional court shall not be influenced by any of the observation above. Subject to the above observations, the appeal stands dismissed.

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Supreme court refuses to entertain impleading and restoration petition by a stranger .

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Case title: Vijaylaxman Bawe v. P & S Nirman PVT LTD

Case no:  Civil Appeal of 2024 arising from SLP 4034 of 2023

Dated on: 8th May 2024

Quorum: Justice B R Gavai and Sandeep Mehta

Facts of the case:

The present appeal is against the judgment passed by the High Court of Bombay whereby the High Court dismissed the revision application of the appellants herein filed for challenging the order of the Civil Judge for condonation of delay in filing application for restoration and seeking thereby to restore the Special Civil Suit No. 269 of 2002, which was dismissed for want of prosecution. The present appeal is concerned with lands situated at Sonkhar Village where there are rival claims with respect to the ownership of the suit land. The Government of Maharashtra, through the Special Land Acquisition Officer, acquired the subject land for public purpose, and handed over to (CIDCO). In the year 2002, Special Civil Suit No. 269 of 2002 was filed by the original plaintiff – Pravin Jamndas Thakkar (Kanani) (since deceased and now represented by his legal heirs, in the trial court against the Government of Maharashtra, Special Land Acquisition Officer, Vijay Laxman Bhawe (Defendant No.3) (since deceased and now represented through his legal heirs), Union of India and CIDCO for relief of declaration that the acquisition is illegal, null and void, however if the court upholds acquisition then a declaration that the plaintiff is entitled to 12½ % Gaonthan Extension Scheme,as per the Gaonthan Extension Scheme of CIDCO. In the year 2005, the original plaintiff – Pravin Jamndas Thakkar passed away. The legal heirs of the original plaintiff, through their Power of Attorney holder, filed application for condonation of delay and for bringing the legal heirs of the plaintiff on record. The trial court allowed the application for condonation of delay as well as the application for bringing the legal heirs on record in the subject suit. However, the trial court dismissed the subject suit for want of prosecution. On 7th November 2019, respondents No. 2 and 3, i.e., the legal heirs of the plaintiff, filed application, seeking condonation of delay of 8 years and 4 days in filing an application for restoration of subject suit. This application is still pending adjudication. Meanwhile, Respondent No. 1, a private limited company, claiming to be the “assignee”, filed an application, seeking condonation of delay of 9 years and 11 months in filing the application for restoration of the subject suit. The trial court allowed the restoration application. Aggrieved by the order, the appellants filed Revision Application before the High Court. The High Court dismissed the civil revision application. Being aggrieved thereby, the present appeal is filed.

Issue:

1. Whether the trial court was right in allowing the application of the Respondent for restoration of suit?

Legal provisions:

 Impleading Legal Heirs and restoration of suit under Cpc.  

Contentions of the Appellant:

The respondent No.1 is totally a stranger to the proceedings. When an application is filed by the legal heirs of the original plaintiff, i.e. respondents No. 2 and 3 for condonation of delay in filing an application for restoration of the subject suit is pending since 7th November 2019, the learned trial court ought not to have considered the application filed by a stranger. The subject suit itself is a frivolous one. The suit land belonged to the predecessors of the appellants, and it was acquired by the State and the compensation was duly received by the appellants. The proceedings for enhancement are also pending before the High Court. It was argued that entertaining the application of a stranger for condonation of delay is mockery of justice.

Contentions of the Respondent:

The respondent No.1 has accrued a right on account of an Agreement entered between it and the legal heirs of the original plaintiff. As the respondents No.2 and 3 were not prosecuting the application for condonation of delay for restoration of the subject suit, respondent No.1 was justified in filing such an application.

Courts judgement and analysis:

The approach of the trial court in entertaining the application of respondent No.1 is unsustainable in law that too when the claim of respondent No.1 is on an unregistered Agreement for Sale. Further, entertaining an application by a stranger for condonation of delay and restoration is totally unsustainable in law. The respondent No.1 has not even been impleaded in the subject suit and hence filing the application filed by a stranger, who is not a party to the proceedings, is totally illegal. If the approach adopted by the trial court is approved, any person can move application for condonation of delay and restoration of the suit even if the person is not a party to the subject suit especially when an application for condonation of delay and for restoration filed by the legal heirs of the original plaintiff is pending since 7th November 2019. It is difficult to understand as to what was the need for the trial court to entertain the application after a period of two years. The trial court could have decided the application on merits. Though, it was argued by the appellants before the High Court that respondent No.1 was a stranger and the reasons given for condonation of delay did not constitute the “sufficient cause”, the High Court totally ignored the same. In light of the view taken, the reasoning given by the trial court as well as the High Court for condoning such an inordinate delay will not come under the ambit of “sufficient cause” as has been discussed by this Court in a catena of judgments. The order of the trial court as well as the High Court are not sustainable in law. The appeal is therefore allowed.

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Supreme Court upholds compulsory retirement intra vires CRPF Act.

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Case title:  Union of India v. Santosh Kumar Tiwar

Case no: Civil Appeal No.6135 of 2024

Dated on:  8th May 2024

Quorum: Justice D.Y.Chandrachud, J B Pardiwala and Manoj Mishra

Facts of the case:

This appeal is against the judgment and order of the High Court of Orissa at Cuttack, preferred by the appellants against the judgment of the Single Judge has been dismissed and the order of the learned Single Judge has been affirmed. The respondent was a Head Constable in Central Reserve Police Force. He was charge-sheeted for assault and abusing his fellow colleague. In the enquiry proceedings as the charges were proved, the respondent was compulsorily retired from service vide order dated 16.02.2006. The respondent filed a departmental appeal, which was dismissed by the Deputy Inspector General (P), CRPF on 28.07.2006. The respondent filed a Writ Petition before a Single Judge Bench who vide order dated 14.01.2020 allowed the writ petition, on the ground that the punishment of compulsory retirement was not punishment specified in Section 11 (1) of the CRPF Act, 1949. Aggrieved with the order of the learned Single Judge, the appellants preferred writ appeal. The Division Bench of the High Court found no merit in the writ appeal and dismissed the same giving rise to the present appeal.

Issue: 

1. Whether the punishment of compulsory retirement can be imposed by relying upon the provisions of Rule 27 of the CRPF Rules? 
2. Whether Rule 27 of the CRPF Rules provides for punishments other than those specified in Section 11 of the CRPF Act? 
3. Whether the punishment of compulsory retirement suffers from any procedural infirmity?

Legal provisions: 

Rule 27 of the CRPF Rules 
Section 11 of the CRPF Act.

Contentions of the Appellant:

The only ground pressed by the original petitioner was that the punishment of compulsory retirement is not imposable under Section 11 of the CRPF Act is not correct. The High Court failed to consider that Section 116 of the CRPF Act has expressly made rules where the Commandant or any other authority or officer may award in lieu of or in addition to suspension or dismissal any one or more punishments whom he considers guilty of disobedience, neglect of duty, or other misconduct can award punishments such as (a) reduction in rank; (b) fine not exceeding one month’s pay and allowances; (c) confinement (e) removal from any office. The punishment for compulsory retirement is specifically provided as one of the punishments imposable on a non-gazetted officer, like the respondent. The impugned order of the High Court is in ignorance of the relevant provisions of the Act as well as the rules. Once an enquiry is held and charge of gross indiscipline is found proved, and further, the Respondent being a member of a disciplined force, the punishment awarded, was not liable to be interfered with by the High Court.

Contentions of the Respondent:

Punishment of compulsory retirement as specified in Rule 27 of the CRPF Rules is ultra vires the provisions of Section 11 of the CRPF Act, and no punishment beyond what is specified therein can be imposed. Punishment which is not contemplated under the statute cannot be introduced by way of a rule. Dismissal and compulsory retirement are two different kinds of punishment and cannot be treated as interchangeable. In the absence delegation of power to frame rules, introducing the punishment of compulsory retirement, is ultra vires the CRPF Act; The charge levelled on the original petitioner was not established, as there were no eyewitness to prove the alleged claim. The Disciplinary Authority and the Appellate Authority acted in a mechanical manner.  

Courts judgement and analysis:

The CRPF Act is “an Act to provide for the constitution and regulation of an armed Central Reserve Police Force (for short the Force)”. The superintendence and control over, vests in the Central Government. Section 9 enumerates “more heinous offences” and Section 10 “less heinous offences”, For “more heinous offences”, the punishment is transportation for life or for a term of not less than seven years or with imprisonment which may extend to 14 years or with fine. The punishment for “less heinous offences” is imprisonment for a term which may extend to one year, or with fine. The Commandant or any other authority subject to any rules under the Act, award in addition to, suspension or dismissal anyone or more of the punishments specified therein guilty of disobedience, neglect of duty, other misconduct. Section 18 confers rule-making power on the Central Government. An overview of the CRPF Act, makes it clear that the Central Government has overall superintendence and control over the Force. The CRPF Rules provide for imposition of the punishment of compulsory retirement though the CRPF Act wherein the Act itself does not provide in specific terms. In Subash Chandra Yadav it was observed that “Before a rule can have the effect of a statutory provision, two conditions are to be complied (1) it must conform to the provisions of the statute (2) it must also come within the scope and purview of the rule-making power of the authority framing the rule” Section 11 does not use common expressions such as “dismissal from service” or “removal from service” while describing the punishments, though, Rule 27 uses those expressions. The High Court opined that only punishments which can be awarded under the section are reduction in rank, fine, confinement to quarters and removal from any office of distinction or special emolument in the Force. This interpretation is not correct, cause as per the section punishments may be awarded in lieu of, or in addition to, suspension or dismissal. The words “in lieu of, or in addition to, suspension or dismissal”, shows that the authorities can award punishment of dismissal or suspension who is found guilty in addition to, punishment mentioned in clauses (a) to (e) may also be awarded. To determine whether the punishment of compulsory retirement is ultra vires the CRPF Act, it would be apposite to first examine the scope of rule-making power conferred on the Central Government by the statute. In order to decide whether Rule 27 of the CRPF Rules, which prescribes additional punishment of compulsory retirement, is intra vires or ultra vires of the CRPF Act, the following facts needs to be considered (a) whether the intention of the legislature was allow the Central Government to prescribe any other minor punishment than what has already been prescribed (b) whether it conflicts with provisions of the CRPF Act. While enacting the CRPF Act, the intention of legislature was not to declare that only minor punishments could be imposed as it was left open for the Central Government to frame rules to carry out the purposes of the Act and the punishments. The concept of “control”, as per P. Ramantha Aiyer’s Advanced Law Lexicon implies that the controlling authority must be in a position to dominate the affairs of its subordinate. The word ‘control’ is very wide and includes disciplinary control. Hence, if the CRPF Act envisages vesting of control over the Force in the Central Government then the various punishments imposable under Section 11 are subject to the rules made under the Act. The Central Government can ensure full and effective control over the Force including the punishment of compulsory retirement. It is therefore held that punishment of compulsory retirement is intra vires the CRPF Act and is an imposable punishment. There is no such perversity in the enquiry report. There is no error in the conduct of the enquiry. There is no need to interfere with the punishment and the appeal is allowed.

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Judgement reviewed by- Parvathy P.V.

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