freedom of voting is a part of the freedom of expression. It is further observed that secrecy of casting vote is necessary for strengthening democracy. It is further observed that in direct elections of Lok Sabha or State Legislature, maintenance of secrecy is a must and is insisted upon all over the world in democracies where direct elections are involved to ensure that a voter casts his vote without any fear or being victimised if his vote is disclosed. It is further observed that democracy and free elections are a part of the basic structure of the Constitution. It is also further observed that the election is a mechanism which ultimately represents the will of the people. The essence of the electoral system should be to ensure freedom of voters to exercise their free choice. Therefore, any attempt of booth capturing and/or bogus voting should be dealt with iron hands because it ultimately affects the rule of law and democracy. Nobody can be permitted to dilute the right to free and fair election.

Sections 323 and 147 IPC -In view of the above, we are of the firm view that the appellants are rightly convicted under Sections 323 and 147 IPC and sentenced to undergo six months simple imprisonment only for the said offences. 23 Before parting, we may observe that though in the present case it has been established and proved that all the accused were the members of the unlawful assembly in prosecution of the common object, namely, “to snatch the voters list and to cast bogus voting” and have been convicted for the offence under Section 147 IPC, the trial Court has imposed the sentence of only six months simple imprisonment. In the case of People”s Union for Civil Liberties (supra), it is observed by this Court that freedom of voting is a part of the freedom of expression. It is further observed that secrecy of casting vote is necessary for strengthening democracy. It is further observed that in direct elections of Lok Sabha or State Legislature, maintenance of secrecy is a must and is insisted upon all over the world in democracies where direct elections are involved to ensure that a voter casts his vote without any fear or being victimised if his vote is disclosed. It is further observed that democracy and free elections are a part of the basic structure of the Constitution. It is also further observed that the election is a mechanism which ultimately represents the will of the people. The essence of the electoral system should be to ensure freedom of voters to exercise their free choice. Therefore, any attempt of booth capturing and/or bogus voting should be dealt with iron hands because it ultimately affects the rule of law and democracy. Nobody can be permitted to dilute the right to free and fair election. However, as the State has not preferred any 24 appeal against imposing of only six months simple imprisonment, we rest the matter there.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 606 OF 2021

Lakshman Singh …Appellant

Versus

State of Bihar (now Jharkhand) …Respondent

WITH

CRIMINAL APPEAL NOS. 630-631 OF 2021

Shiv Kumar Singh & Others Etc. ...Appellants

Versus

State of Bihar (now Jharkhand) ...Respondent

J U D G M E N T

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned common

judgment and order dated 31.10.2018 passed by the High Court of

1

Jharkhand at Ranchi in Criminal Appeal Nos. 232/1999 and 242/1999,

by which the High Court has dismissed the said appeals preferred by the

appellants herein and has confirmed the judgment and order of

conviction and sentence passed by the learned trial Court convicting the

appellants for the offences under Sections 323 and 147 IPC and

sentencing them to undergo six months simple imprisonment under both

sections, original accused nos. 9, 8, 12, 11, 10, 14, 2 and 13 –

Lakshman Singh, Shiv Kumar Singh, Upendra Singh, Vijay Singh,

Sanjay Prasad Singh, Rajmani Singh, Ayodhya Prasad Singh and

Ramadhar Singh have preferred the present appeals.

2. As per the case of the prosecution, an FIR was lodged at Paatan

Police Station by the first informant – Rajeev Ranjan Tiwari on

26.11.1989 alleging inter alia that on the eve of general election, he was

working as a worker of Bhartiya Janta Party at village Golhana Booth

No. 132 under Paatan Police Station and was issuing slips to the voters

towards two hundred yards north away from the polling booth; at that

time, at around 10:40 a.m., the accused persons who belong to another

village Naudiha came armed with lathis, sticks, country made pistols and

asked him to stop issuing voter slips and handover the voters list which

he was possessing and on his refusal the accused persons started

physically beating him (PW8 – Rajiv Ranjan Tiwari) with hands, fists,

2

lathis and sticks; the brother of the first informant-PW8, Priya Ranjan

Tiwari (PW10) upon knowing about the incident came to rescue him and

at that time accused Dinanath Singh @ Dina Singh fired gun shot at

PW10 with his country made pistol, due to which he received pellet

injuries. Accused Ajay Singh fired at Dinesh Tiwari (PW12), due to which

he was injured. It was further alleged that due to scuffle, accused Hira

Singh snatched wrist watches of PW8 & PW10; the villagers rushed

there and then all the accused persons ran away towards village

Naudhia. Based on the statement of PW8 – Rajiv Ranjan Tiwari, which

was recorded at 12:30 p.m. on 26.11.1989, an FIR was registered at

about 2:00 p.m. on the very day, i.e., 26.11.1989 against 16 accused

named persons for the offences under Sections 147, 148, 149, 307, 326,

324, 323 IPC and Section 27 of the Arms Act. At this stage, it is required

to be noted that even some of the accused – Lakshman Singh, Shiv

Kumar Singh and Ayodhya Prasad Singh also sustained injuries. After

conclusion of the investigation, the investigating officer filed chargesheet

against 15 accused including the appellants herein.

2.1 The learned trial Court framed the charge against the accused

persons for the offences under Sections 323, 307, 147, 149 and 379

IPC. Accused Dinanath Singh and Ajay Singh were further charged

under Sections 148 IPC and accused Hira Singh was also charged

3

under Section 379 IPC. As the case was exclusively triable by the Court

of Sessions, the case was committed to the learned Sessions Court,

which was numbered as Sessions Trial No. 36 of 1991.

2.2 To prove the case against the accused, the prosecution examined

in all 15 witnesses including PW8, the first informant – Rajiv Ranjan

Tiwari, Priya Ranjan Tiwari (PW10) the brother of the first informant and

PW5 – Dilip Kumar Tiwari, who all were injured eye witnesses. The

prosecution also examined Dr. Jawahar Lal (PW7), who examined

PW10, PW12 and PW5 on the very day at Sadar Hospital, Daltonganj

and who found injuries on the said persons. The prosecution also

examined the investigating officer – Shivnandan Mahto (PW13).

Prosecution also examined independent witnesses, i.e., PW1, PW3 &

PW4. After closure of the evidence on behalf of the prosecution,

statements of the accused persons under Section 313 Cr.P.C. were

recorded. They denied to the allegations. The defence also examined

DW1 to prove the injuries on accused Ayodhya Prasad Singh, Rama

Singh, Shiv Kumar Singh and Lakshman Singh and brought on record

their injury reports.

2.3 Thereafter, on conclusion of the full-fledged trial and on

appreciation of the entire evidence on record and relying upon the

deposition of PW8, PW10 & PW5, who all were injured eyewitnesses

4

and other eyewitnesses, the learned trial Court convicted the appellants

herein for the offences under Sections 323 and 147 IPC and sentenced

them to undergo six months simple imprisonment for both the offences.

The learned trial Court also convicted accused Dinanath Singh for the

offences under Sections 326 & 148 IPC and sentenced him to undergo

seven years and two years RI respectively. The learned trial Court also

convicted accused Ajay Singh for the offences under Sections 324 & 148

IPC and sentenced him to undergo three years & two years RI

respectively.

2.4 Feeling aggrieved and dissatisfied with the judgment and order of

conviction and sentence, convicting and sentencing the appellants

herein, original accused nos. 9, 8, 12, 11, 10, 14, 2 preferred appeal

along with other accused being Criminal Appeal No.232 of 1999 and

accused no. 13 preferred appeal being Criminal Appeal No. 242 of 1999

before the High Court. By the common impugned judgment and order,

the High Court has dismissed the said appeals and has confirmed the

judgment and order of conviction and sentence passed by the learned

trial Court.

2.5 Feeling aggrieved and dissatisfied with the impugned common

judgment and order passed by the High Court, original accused nos. 9,

8, 12, 11, 10, 14, 2 & 13 have preferred the present appeals.

5

3. Shri Manoj Swarup, learned Senior Advocate has appeared on

behalf of the appellants – accused and Shri Arunabh Chowdhury,

learned Additional Advocate General in Criminal Appeal No. 606/2021

and Shri Tapesh Kumar Singh, learned Advocate in Criminal Appeal Nos.

630-631/2021 have appeared for the State of Jharkhand.

3.1 Learned Senior Advocate appearing on behalf of the appellants –

accused has vehemently submitted that in the facts and circumstances

of the case both, the learned trial Court as well as the High Court have

committed a grave error in convicting the accused for the offences under

Sections 323, 147 IPC.

3.2 It is further submitted that both the courts below have materially

erred in relying upon the deposition of PW8, PW10 & PW5. It is

submitted that the aforesaid witnesses are unreliable and untrustworthy.

It is submitted that they are not the independent witnesses. It is

submitted that as such PW12 – Dinesh Tiwary turned hostile. It is

submitted that the aforesaid witnesses belong to the same village.

3.3 It is further submitted that even both the courts below have

materially erred in coming to the conclusion that the appellants were part

of the unlawful assembly and thereby have committed a grave error in

convicting the accused for the offence under Section 147 IPC.

6

3.4 It is further submitted that the motive has not been established and

proved. It is submitted that the common object was alleged to be to cast

bogus votes, which was never cast. It is submitted that even the voter

slip was also available with all other parties and therefore the motive as

per the prosecution case is questionable.

3.5 It is further submitted that so far as the impugned judgment and

order passed by the High Court is concerned, the individual role and/or

the merits of the case qua the respective appellants – accused have not

at all been considered by the High Court. It is submitted that the High

Court has only stated at page 26, para 23 qua the present appellants

that so far as the rests of the appellants are concerned, they have been

rightly held guilty under Sections 323 & 147 IPC. It is submitted that

there is no independent assessment of the evidence qua the appellants

herein.

3.6 It is further submitted that both the courts below have not properly

appreciated the fact that the presence of the accused at the polling

station was natural. It is submitted that because of the bye-election, the

accused persons along with the other persons belonging to different

political parties were present. It is submitted that it was natural for the

people belonging to different parties to call persons from different

7

villages or otherwise to be present at booth and that itself would not be

sufficient to prove the guilt.

3.7 It is further submitted that even otherwise, the courts below have

materially erred in convicting the accused for the offence under Section

323 IPC. It is submitted that so far as PW8 – informant is concerned,

there was no injury sustained by him. It is submitted that no injury

certificate of PW8 has been brought on record. It is submitted that the

prosecution has brought on record the injury certificates of three persons

only, namely, PW10 -Priya Ranjan Tiwari, PW12 – Dinesh Tiwari and

PW5 – Dilip Tiwari. It is submitted that all the injuries are by gunshot

except two simple injuries caused to Dinesh Tiwari – PW12. It is

submitted that PW12 turned hostile. It is submitted that the appellants

are alleged to have used lathis and sticks only against the first informant

– PW8 as per the prosecution case. It is submitted that therefore in the

absence of any corroborating evidence/material in support of the case of

the prosecution that the appellants have beaten PW8 and sustained

injuries, the courts below have materially erred in convicting the accused

for the offence under Section 323 IPC.

3.8 It is further submitted that even the conduct on the part of the first

informant – PW8 creates doubt about his credibility. It is submitted that

he has roped in several persons belonging to the opposite camp. It is

8

submitted that after the incident he went to the village and the police

SHO came to his house and taken him to the government hospital,

Patan and thereafter recorded his fardbyan (statement). It is submitted

that neither he went to his injured brother nor he has ever gone to see

him at the hospital nor any family member went to see the injured in the

hospital. It is submitted that in such circumstances, PW8 is not a reliable

and trustworthy witness and therefore the courts below ought not to have

relied upon the deposition of PW8.

3.9 It is further submitted that even there is no recovery of lathis and

sticks. It is submitted that even the voting slips have also not been

recovered from the informant. It is submitted that non-exhibit of voter

slips demolishes the case of the prosecution. It is submitted that FIR,

PW1 and informant and consistently all witnesses have stated that Rajiv

Ranjan Tiwari refused to give voter slips to the accused, upon which

scuffle occurred. It is submitted that the voting slips are not exhibited. It

is submitted therefore uncorroborated testimony of asking voter slips is

not proved.

3.10 Making the above submissions and relying upon the decisions of

this Court in the cases of Kutumbaka Krishna Mohan Rao v. Public

Prosecutor, High Court of A.P., reported in 1991 Supp. 2 SCC 509 and

9

Inder Singh v. State of Rajasthan, reported in (2015) 2 SCC 734, it is

prayed to allow the present appeals.

4. The present appeals are opposed by the learned counsel

appearing on behalf of the State of Jharkhand.

4.1 It is submitted that as such there are concurrent findings of fact

recorded by both, the learned trial Court as well as the High Court,

holding the appellants guilty for the offences under Sections 323 & 147

IPC.

4.2 It is submitted that in the present case the prosecution has been

successful in proving the case against the accused by examining PW8,

PW10 & PW5, who are the injured eyewitnesses. It is submitted that the

injured eyewitnesses – PW8, PW10 & PW5 are reliable and trustworthy.

It is submitted that all the aforesaid three witnesses were thoroughly

cross-examined and from cross-examination, nothing adverse to the

case of the prosecution has been brought on record by the accused. It is

submitted that even the prosecution examined thee other witnesses,

PW1, PW3 & PW4 who are independent witnesses, who supported the

case of the prosecution. It is submitted that as such the learned trial

Court has discussed the entire evidence on record and analysed the

injury reports and thereafter by a detailed judgment has convicted the

appellants for the offence of voluntarily causing hurt under Section 323

10

IPC and for the offence of rioting under Section 147 IPC. It is submitted

that all the appellants have been guilty for the offence of rioting

punishable under Section 147 IPC. It is submitted that for the offence of

rioting, there has to be,

i) an unlawful assembly of 5 or more persons as defined in

Section 141 IPC, i.e., an assembly of 5 or more persons and such

assembly was unlawful;

ii) the unlawful assembly must use force or violence. Force is

defined in Section 349 IPC; and

iii) the force or violence used by an unlawful assembly or by any

member thereof must be in prosecution of the common object of

such assembly in which case every member of such assembly is

guilty of the offence of rioting.

It is submitted that in the present case, all the ingredients of rioting

as defined under Section 146 of the IPC has been established and

proved.

4.3 It is submitted that as held by this Court in the case of Mahadev

Sharma v. State of Bihar, (1966) 1 SCR 18 = AIR 1966 SC 302, ‘that

every member of the unlawful assembly is guilty of the offence of rioting

even though he may not have himself used force or violence’. It is

submitted that as held by this Court, ‘offence of rioting under Section 146

IPC is said to be committed when the unlawful assembly or any member

thereof in prosecution of the common object of such assembly uses

force or violence’. It is submitted that therefore once the unlawful

assembly is established in prosecution of the common object, i.e., in the

11

present case, as held by the courts below, the common object was “to

snatch the voter list and to cast bogus voting”, each member of the

unlawful assembly is guilty for the offence of rioting. It is submitted that

the use of force, even though it be the slightest possible character by

any one member of the assembly, once established as unlawful

constitutes rioting. It is submitted that it is not necessary that force or

violence must be by all but the liability accrues to all the members of the

unlawful assembly. It is submitted that some may encourage by words,

others by signs while others may actually cause hurt and yet all

members of the unlawful assembly would be equally guilty of rioting. It is

submitted that in the present case both the courts below have found the

appellants as an active participant in the offence and they cannot be said

to be the wayfarers or spectators.

4.4 It is submitted that so far as the offence of voluntarily causing hurt

as defined under Section 321 IPC and punishable under Section 323

IPC is concerned, it is submitted that the injuries sustained by PW5 to

PW8 and PW12 are simple injuries while PW10 sustained grievous

injuries. It is submitted that as such considering the nature of the

injuries, the appellants have been let off lightly by the courts below.

It is further submitted that as such the accused Lakshman Singh,

Shiv Kumar Singh and Ayodhya Prasad Singh sustained injuries which

12

establish beyond doubt their presence and participation. It is submitted

that in their statement under Section 313 Cr.P.C., they have not

explained their injuries at all.

4.5 It is further submitted that as PW5, PW8 & PW10 are injured

witnesses, as held by this Court in catena of decisions, evidence of an

injured eye witness has great evidentiary value and unless compelling

reasons exist, their statements are not to be discarded lightly. It is

submitted that very cogent and convincing grounds are required to

discard the evidence of the injured witness. Reliance is placed on the

judgments of this Court in the cases of State of MP v. Mansingh (2003)

10 SCC 414(para 9); Abdul Sayeed v. State of MP (2010) 10 SCC 259;

Ramvilas v. State of Madhya Pradesh, (2016) 16 SCC 316 (para 6);

State of Uttar Pradesh v. Naresh, (2011) 4 SCC 324 (para 27); and the

recent decision in the case of Kalabhai Hamirbhai Kachhot v. State of

Gujarat, (2021) SCC Online SC 347 (paras 20 & 21).

4.6 It is further submitted that in the present case, right from the very

beginning, all the accused were named in the FIR and their role and

complicity have been established with trustworthy, reliable and cogent

evidence. It is submitted that all the accused persons including the

present appellants formed the unlawful assembly in furtherance of the

common object “to snatch the voter list and to cast bogus voting” and

13

actually participated in the occurrence and committed the offences. It is

submitted that as such there is no ground to disbelieve the evidence of

the injured eye witnesses/eye witnesses.

4.7 It is further submitted that as such the learned trial Court took a

very lenient view in imposing the sentence of only six months simple

imprisonment. It is submitted that once the appellants were found to be

the members of the unlawful assembly with a common object and

looking to the injuries sustained by PW5, PW10 & PW12 who sustained

injuries by fired arm also, as such, all the appellants-accused ought to

have been convicted along with other accused for the offences under

Sections 307, 326, 324 and 148 IPC also.

4.8 It is further submitted that bogus voting seriously undermines the

most basic feature of democracy and interferes with the conduct of free

and fair election which has been held by this Court in the case of

People’s Union for Civil Liberties v. Union of India, (2013) 10 SCC 1, to

include within its ambit the right of an elector to cast his vote without fear

or duress. It is submitted that as held by this Court in the aforesaid

decision, free and fair election is a basic structure of the Constitution and

necessarily includes within its ambit the right of an elector to cast his

vote without fear of reprisal, duress or coercion. It is submitted that

therefore when the trial Court has shown leniency to the appellants in

14

sentencing them only for six months simple imprisonment, no

interference of this Court is called for.

4.9. Making the above submissions and relying upon the aforesaid

decisions, it is prayed to dismiss the present appeals.

5. We have heard the learned counsel for the respective parties at

length. We have meticulously scanned the entire evidence on record

and also the findings recorded by the learned trial Court, which are on

appreciation of the evidence on record. At the outset, it is required to be

noted that all the accused herein are convicted for the offences under

Section 323 and 147 IPC and are sentenced to undergo six months

simple imprisonment for both the offences and the sentences are

directed to run concurrently.

It is true that in the impugned judgment the High Court has not at

all dealt with and/or considered the case on behalf of the

accused/appellants herein and has not discussed the evidence qua each

accused, which ought to have been done while deciding the first appeal

against the judgment and order of conviction. However, as for the

reasons stated hereinbelow and ultimately, we agree with the final

conclusion of the High Court confirming the judgment and order passed

by the learned trial Court, instead of remanding the matter to the High

Court, we ourselves have re-appreciated the entire evidence on record.

15

5.1 In the present case, while convicting the accused, the learned trial

Court has heavily relied upon the deposition of PW1, PW3 and PW4,

who are the independent witnesses and PW5, PW8 & PW10, who are

the injured witnesses. The presence of the independent witnesses and

even the injured witnesses at the place of the incident is natural. PW1,

PW3 & PW4, all of whom were the residents of the village and they

came there to cast their votes and witnessed the incident. All the

witnesses, PW1, PW3 & PW4 have identified all the accused persons

and supported the case of the prosecution fully. PW5, PW8, PW10 and

even PW12 are injured eyewitnesses. Injuries on PW5, PW10 & PW12

have been established and proved by the prosecution by examining Dr.

Jawahar Lal (PW7), who examined the above injured witnesses. Their

injury reports are placed on record by way of Exhibit 1, 1/1 and ½. All

the witnesses have unequivocally and in the same voice have stated

that at the relevant time when the voting was going on for the Lok Sabha

constituency and at that time PW8 - Rajiv Ranjan Tiwari was giving slips

to the voters and at that time at about 10:40 a.m. all the accused

persons belonging to another village came there and asked him to stop

giving slips and to handover the voter list and on refusal the accused

persons assaulted him with fists, slaps and lathis and he sustained

injuries. Meanwhile, his brother Priya Ranjan Tiwari came for his rescue

and at that time one Dinanath Singh took out his country made pistol

16

and fired upon him causing several fire-armed injuries. All the accused

persons were named right from the very beginning of lodging the FIR

and all the accused persons were specifically named by all the

witnesses and/or fully supported the case of the prosecution. At this

stage, it is required to be noted that even some of the accused namely, –

Lakshman Singh, Shiv Kumar Singh and Ayodhya Prasad Singh

sustained injuries and they have failed to explain their injuries in their

313 statements. Thus, their presence at the time and place of incident

has been established and proved even otherwise. At the cost of the

repetition, it is observed that PW5, PW8 and PW10 are the injured

witnesses. Even after they have been fully cross-examined, they have

fully supported the case of the prosecution, even after thorough crossexamination on behalf of the accused.

6. In the case of Mansingh (supra), it is observed and held by this

Court that “the evidence of injured witnesses has greater evidentiary

value and unless compelling reasons exist, their statements are not to

be discarded lightly”. It is further observed in the said decision that

“minor discrepancies do not corrode the credibility of an otherwise

acceptable evidence”. It is further observed that “mere non-mention of

the name of an eyewitness does not render the prosecution version

fragile”.

17

6.1 A similar view has been expressed by this Court in the subsequent

decision in the case of Abdul Sayeed (supra). It was the case of

identification by witnesses in a crowd of assailants. It is held that “in

cases where there are large number of assailants, it can be difficult for

witnesses to identify each assailant and attribute specific role to him”. It

is further observed that “when incident stood concluded within few

minutes, it is natural that exact version of incident revealing every minute

detail, i.e., meticulous exactitude of individual acts, cannot be given by

eyewitnesses”. It is further observed that “where witness to occurrence

was himself injured in the incident, testimony of such witness is generally

considered to be very reliable, as he is a witness that comes with an

inbuilt guarantee of his presence at the scene of crime and is unlikely to

spare his actual assailant(s) in order to falsely implicate someone”. It is

further observed that “thus, deposition of injured witness should be relied

upon unless there are strong grounds for rejection of his evidence on

basis of major contradictions and discrepancies therein”.

6.2 The aforesaid principle of law has been reiterated again by this

Court in the case of Ramvilas (supra) and it is held that “evidence of

injured witnesses is entitled to a great weight and very cogent and

convincing grounds are required to discard their evidence”. It is further

18

observed that “being injured witnesses, their presence at the time and

place of occurrence cannot be doubted”.

7. Applying the law laid down by this Court in the aforesaid decisions

to the facts of the case on hand, we see no reason to doubt the

credibility and/or trustworthiness of PW1, PW3 & PW4 and more

particularly PW5, PW8 & PW10, who are the injured witnesses. All the

witnesses are consistent in their statements and they have fully

supported the case of the prosecution. Under the circumstances, the

courts below have not committed any error in convicting the accused,

relying upon the depositions of PW1, PW3, PW4, PW5, PW8 & PW10.

8. Now so far as the submission on behalf of the appellants –

accused that all the appellants were alleged to have armed with lathis

and so far as PW8 is concerned, no injury report is forthcoming and/or

brought on record and therefore they cannot be convicted for the offence

under Section 323 IPC is concerned, at the outset, it is required to be

noted that PW8 in his examination-in-chief/deposition has specifically

stated that after he sustained injuries, treatment was provided at

Government Hospital, Paatan. He has further stated in the crossexamination on behalf of all the accused persons except accused

Dinanath Singh that he sustained 2-3 blows of truncheons. He has also

stated that he does not exactly remember that how many blows he

19

suffered. According to him, he first went to Police Station, Paatan along

with the SHO of Police Station, Paatan, where his statement was

recorded and thereafter the SHO sent him to Paatan Hospital for

treatment. Thus, he was attacked by the accused persons by

lathis/sticks and he sustained injuries and was treated at Government

Hospital, Paatan has been established and proved. It may be that

there might not be any serious injuries and/or visible injuries, the hospital

might not have issued the injury report. However, production of an injury

report for the offence under Section 323 IPC is not a sine qua non for

establishing the case for the offence under Section 323 IPC. Section

323 IPC is a punishable section for voluntarily causing hurt. “Hurt” is

defined under Section 319 IPC. As per Section 319 IPC, whoever

causes bodily pain, disease or infirmity to any person is said to cause

“hurt”. Therefore, even causing bodily pain can be said to be causing

“hurt”. Therefore, in the facts and circumstances of the case, no error

has been committed by the courts below for convicting the accused

under Section 323 IPC.

9. Now so far as the conviction of the accused under Section 147 IPC

is concerned, the presence of all the accused persons at the time of

incident and their active participation has been established and proved

by the prosecution by examining the aforesaid witnesses who are the

20

independent witnesses and injured witnesses also. The accused

persons belong to another village. They formed an unlawful assembly in

prosecution of common object, i.e., “to snatch the voters list and to cast

bogus voting”. It has been established and proved that they used the

force and, in the incident, PW5, PW8, PW10 & PW12 sustained injuries.

All the accused persons-appellants were having lathis. Section 147 IPC

is a punishable section for “rioting”. The offence of “rioting” is defined in

Section 146 IPC, which reads as under:

“146. Rioting – Whenever force or violence is used by an

unlawful assembly, or by any member thereof, in prosecution of

the common object of such assembly, every member of such

assembly is guilty of the offence of rioting.”

On a fair reading of the definition of “rioting” as per Section 146

IPC, for the offence of “rioting”, there has to be,

i) an unlawful assembly of 5 or more persons as defined in

Section 141 IPC, i.e., an assembly of 5 or more persons and such

assembly was unlawful;

ii) the unlawful assembly must use force or violence. Force is

defined in Section 349 IPC; and

iii) the force or violence used by an unlawful assembly or by any

member thereof must be in prosecution of the common object of

such assembly in which case every member of such assembly is

guilty of the offence of rioting.

9.1 “Force” is defined under Section 349 IPC. As per Section 349 IPC,

“force” means “A person is said to use force to another if he causes

motion, change of motion, or cessation of motion to that other…….”

21

As observed hereinabove, all the accused persons were the

members of the unlawful assembly and the common intention was “to

snatch the voters slips and to cast bogus voting”. They used force and

violence also, as observed hereinabove. It is the case on behalf of the

accused that there is no specific role attributed to them for the offence of

rioting under Section 147 IPC. However, as observed hereinabove and

as held by this Court in the case of Abdul Sayeed (supra), where there

are large number of assailants, it can be difficult for witnesses to identify

each assailant and attribute specific role to him. In the present case, the

incident too concluded within few minutes and therefore it is natural that

exact version of incident revealing every minute detail, i.e., meticulous

exactitude of individual acts cannot be given by eyewitnesses. Even

otherwise, as held by this Court in the case of Mahadev Sharma (supra),

every member of the unlawful assembly is guilty of the offence of rioting

even though he may not have himself used force or violence. In

paragraph 7, it is observed and held as under:

“7. Section 146 then defines the offence of rioting. This

offence is said to be committed when the unlawful assembly or

any member thereof in prosecution of the common object of

such assembly uses force or violence. It may be noticed here

that every member of the unlawful assembly is guilty of the

offence of rioting even though he may not have himself used

force or violence. There is thus vicarious responsibility when

force or violence is used in prosecution of the common object of

the unlawful assembly.”

22

Thus, once the unlawful assembly is established in prosecution of

the common object, i.e., in the present case, “to snatch the voters list

and to cast bogus voting”, each member of the unlawful assembly is

guilty of the offence of rioting. The use of the force, even though it be the

slightest possible character by any one member of the assembly, once

established as unlawful constitutes rioting. It is not necessary that force

or violence must be by all but the liability accrues to all the members of

the unlawful assembly. As rightly submitted by the learned counsel

appearing on behalf of the State, some may encourage by words, others

by signs while others may actually cause hurt and yet all the members of

the unlawful assembly would be equally guilty of rioting. In the present

case, all the accused herein are found to be the members of the unlawful

assembly in prosecution of the common object, i.e., “to snatch the voters

list and to cast bogus voting” and PW5, PW8, PW10 & PW12 sustained

injuries caused by members of the unlawful assembly, the appellantsaccused are rightly convicted under Section 147 IPC for the offence of

rioting.

10. In view of the above, we are of the firm view that the appellants are

rightly convicted under Sections 323 and 147 IPC and sentenced to

undergo six months simple imprisonment only for the said offences.

23

Before parting, we may observe that though in the present case it

has been established and proved that all the accused were the members

of the unlawful assembly in prosecution of the common object, namely,

“to snatch the voters list and to cast bogus voting” and have been

convicted for the offence under Section 147 IPC, the trial Court has

imposed the sentence of only six months simple imprisonment. In the

case of People”s Union for Civil Liberties (supra), it is observed by this

Court that freedom of voting is a part of the freedom of expression. It is

further observed that secrecy of casting vote is necessary for

strengthening democracy. It is further observed that in direct elections of

Lok Sabha or State Legislature, maintenance of secrecy is a must and is

insisted upon all over the world in democracies where direct elections

are involved to ensure that a voter casts his vote without any fear or

being victimised if his vote is disclosed. It is further observed that

democracy and free elections are a part of the basic structure of the

Constitution. It is also further observed that the election is a mechanism

which ultimately represents the will of the people. The essence of the

electoral system should be to ensure freedom of voters to exercise their

free choice. Therefore, any attempt of booth capturing and/or bogus

voting should be dealt with iron hands because it ultimately affects the

rule of law and democracy. Nobody can be permitted to dilute the right

to free and fair election. However, as the State has not preferred any

24

appeal against imposing of only six months simple imprisonment, we

rest the matter there.

11. In view of the above and for the reasons stated hereinabove, all the

appeals fail and deserve to be dismissed and are accordingly dismissed.

Since, the applications for exemption from surrendering of the accusedappellants herein were allowed by this Court vide orders dated

15.03.2019 and 08.07.2019 respectively, the accused-appellants are

directed to surrender forthwith to serve out their sentence.

…..………………………………..J.

[Dr. Dhananjaya Y. Chandrachud]

New Delhi; …………………………………….J.

July 23, 2021. [M.R. Shah]

25

Sections 420/467/468/471/120B of the IPC and Sections 3(1)(4)/3(15)/3(5) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act - sanction under Section 197 of the CrPC was required before triggering any prosecution against the Station House Officer for filing/failing to file an FIR and for other criminal acts committed during the discharge of his duties.

Sections 420/467/468/471/120B of the IPC and Sections 3(1)(4)/3(15)/3(5) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act - sanction under Section 197 of the CrPC was required before triggering any prosecution against the Station House Officer for filing/failing to file an FIR and for other criminal acts committed during the discharge of his duties.

Section 197 of the CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognisance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance. [See Subramanian Swamy Vs. Manmohan Singh 4 ]. The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him “while acting or purporting to act in the discharge of his official duty” and in order to find out whether the alleged offence is committed “while acting or purporting to act in the discharge of his official duty”, the yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties. [See State of Maharashtra Vs. Dr. Budhikota Subbarao] 5 . The real question, therefore, is whether the act committed is directly concerned with the official duty

What emerges therefrom is that insofar as the processing of the papers was concerned, Surendra Kumar Mathur, the Executive Officer, had put his initials to the relevant papers which was held in discharge of his official duties. Not only that, Sandeep Mathur, who was part of the alleged transaction, was also similarly granted protection. The work which was assigned to Respondent No.2 pertained to the subject matter of allotment, regularisation, conversion of agricultural land and fell within his domain of work. In the processing of application of Megharam, the file was initially put up to the Executive Officer who directed the inspection and the inspection was carried out by the Junior Engineer and only thereafter the Municipal Commissioner signed the file. The result is that the superior officers, who have dealt with the file, have been granted protection while the clerk, who did the paper work, i.e. Respondent No.2, has been denied similar protection by the trial court even though the allegation is of really conspiring with his superior officers. Neither the State nor the complainant appealed against the protection granted under Section 197 of the CrPC qua these two other officers. We are, thus, not able to appreciate why a similar protection ought not to be granted to Respondent No.2 as was done in the case of the other two officials by the Trial Court and High Court respectively. The sanction from competent authority would be required to take cognisance and no sanction had been obtained in respect of any of the officers. It is in view thereof that in respect of the other two officers, the proceedings were quashed and that is what the High Court has directed in the present case as well. In view of the aforesaid, the appeals are dismissed.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 593 OF 2021

[Arising out of SLP (Crl) No. 1605 of 2018]

INDRA DEVI ……APPELLANT

VERSUS

STATE OF RAJASTHAN & ANR. ….RESPONDENTS

WITH

CRIMINAL APPEAL NO. 594 OF 2021

[Arising out of SLP (Crl) No.5015 of 2021

D.No. 7196 of 2019]

STATE OF RAJASTHAN ……APPELLANT

VERSUS

YOGESH ACHARYA ….RESPONDENT

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. Indra Devi, the appellant, is the complainant in FIR No.80 dated

23.02.2011 registered under Sections 420/467/468/471/120B of the IPC and

Sections 3(1)(4)/3(15)/3(5) of the Scheduled Caste & Scheduled Tribe

(Prevention of Atrocities) Act at P.S. Kotwali, Distt. Barmer. It was alleged

that she and her husband Bhanwar Lal purchased two plots in Khasra

1

No.1179/03 located in Distt. Barmer. Out of these two plots, one plot was

sold to one Megharam while another plot was sold to one Chetan Choudhary.

In the plot purchased in the name of her husband, a residential house and

shops are stated to have been made. Megharam is alleged to have

tampered with and fabricated the agreement with the intention to defraud.

This was allegedly done in collusion with the then executive officer of the

Municipality, one Surender Kumar Mathur and “the concerned clerk and

others”, by enlarging the dimensions of the plot which have been sold to him

with the intention to grab the land and house occupied by the complainant

and her husband. The Khasra number is also alleged to have been changed

from 1179/03 to 1143/04. This fact is stated to have come to the notice of

the complainant only when they were served with a court notice when they

were in physical possession of the plot with the house and the shop. Her

husband is stated to have gone to Jaipur for treatment of cancer. The

accused persons are, thus, alleged to have committed the offences of

fraudulently making a scheduled caste women, her cancer diagnosed

husband and other family members homeless. It may be noted that

Respondent No.2 herein, Yogesh Acharya was not named in the FIR but,

apparently, he is stated to be “the concerned clerk”.

2. In pursuance of the investigation, a chargesheet was filed and charges

were framed vide order dated 10.04.2012 against Megharam. Once again

Respondent No.2 was not named in the chargesheet but a reference was

made to Megharam acting in collusion with “co-accused persons”.

2

3. The records placed before us do not reflect how Respondent No.2 was

exactly roped in, but suffice to say, Respondent No.2 moved an application

under Section 197 of the CrPC before the trial court stating that he was a

public servant and what he did in respect of allotment of lease, that was

executed in favour of Megharam, was done during the course of his official

duty and thus he was entitled to protection under the aforementioned

provision. He also sought to assail the chargesheet as the same had been

filed without obtaining sanction of the competent authority under Section

197 of the CrPC.

4. The trial court dismissed the application vide order dated 10.08.2017,

while noticing that Respondent No.2 had not been mentioned in the FIR. It

was opined that it was the duty of Respondent No.2 to bring irregularities to

the knowledge of the competent officers, i.e. Megharam had mentioned the

wrong Khasra number in the lease but no documents of ownership of the

land were produced. The trial court was of the view that had the

discrepancies been brought to the knowledge of the competent officers by

Respondent No.2, the disputed lease would not have been issued. The result

of the failure to do so caused the forged lease to be prepared. Respondent

No.2 had also drafted the disputed lease in which he failed to mention

necessary details. It was, thus, opined that Respondent No.2 was liable to be

prosecuted against for having committed criminal offence to procure a

forged lease. What Respondent No.2 did was held not to be done by the

3

public servant in discharge of his official duty and thus protection under

Section 197 of the CrPC would not come to his aid.

5. Respondent No.2 thereafter filed a Crl. Misc. Petition No.3138/2017

under Section 482 of the CrPC before the High Court of Judicature at Jodhpur

assailing the said order of the trial court. The High Court, vide impugned

order dated 03.10.2017, allowed the petition. It was opined that the case

was similar to the one of Devi Dan v. State of Rajasthan

1

. The High Court

had opined therein that sanction under Section 197 of the CrPC was required

before triggering any prosecution against the Station House Officer for

filing/failing to file an FIR and for other criminal acts committed during the

discharge of his duties. The complainant, aggrieved by the said judgment,

has approached this court by filing a special leave petition. The State has

also filed an SLP. Leave was granted in both the matters.

6. The appellant contended before us that the involvement of Respondent

No.2 only came to light during investigation. He had failed to bring the

irregularities to the knowledge of his superiors which was instrumental in

issuing the forged lease. Thus, he had conspired with his superiors in

dishonestly concealing the forgery, and intentionally omitting mentioning the

date of the proceedings on the order sheet. Such action of forging

documents would not be considered as an act conducted in the course of his

official duties and, thus Section 197 of the CrPC would not give protection to

Respondent No.2.

1 Crim. Misc. Pet. No.2177/2013 decided on 10.10.2014

4

7. On the other hand, Respondent No.2 endeavoured to support the

impugned judgment of the High Court by emphasising that in FIR only

Megharam alongwith some unnamed officials were mentioned. Surender

Kumar Mathur, the Executive Officer of the Nagar Palika, had filed a petition

under Section 482 of the CrPC relating to the same transaction and the High

Court had granted him protection under Section 197 of the CrPC vide order

dated 22.02.2018. The conduct of putting his initials was held to be an act

done in discharge of his duties. Similarly, Sandeep Mathur, a Junior

Engineer, who was part of the same transaction, was granted protection by

the Sessions Court vide order dated 19.03.2020, once again under the same

provision, i.e., Section 197 of the CrPC. Both the orders remained

unchallenged by the complainant and the State. Further, it has been argued

that Respondent No.2 was simply carrying out his official duty which is

apparent from the work allotted to him that pertained to allotment,

regularisation, conversion of agricultural land and all kinds of work relating to

land and conversion. The application of Megharam was routed through the

office, and the proceedings show that the file was initially put up before the

Executive Officer, who directed inspection, which was carried out by the

Junior Engineer. Thereafter, file was placed before the Executive Officer

again and only then was it signed by the Municipal Commissioner. The two

key people involved in the process had already been granted protection and

thus Respondent No.2 herein, who was merely a Lower Division Clerk, could

not be denied similar protection.

5

8. Learned counsel for Respondent relied upon the judgments of this

Court in B. Saha & Ors. Vs. M.S. Kochar

2

 and State of Maharashtra Vs. Dr.

Budhikota Subbarao

3

 to contend that Section 197 of the CrPC ought to be

read in a liberal sense for grant of protection to the public servant with

respect to actions, which though constitute an offence, are “directly and

reasonably” connected with their official duties.

9. We have given our thought to the submissions of learned counsel for

the parties. Section 197 of the CrPC seeks to protect an officer from

unnecessary harassment, who is accused of an offence committed while

acting or purporting to act in the discharge of his official duties and, thus,

prohibits the court from taking cognisance of such offence except with the

previous sanction of the competent authority. Public servants have been

treated as a special category in order to protect them from malicious or

vexatious prosecution. At the same time, the shield cannot protect corrupt

officers and the provisions must be construed in such a manner as to

advance the cause of honesty, justice and good governance. [See

Subramanian Swamy Vs. Manmohan Singh

4

]. The alleged indulgence of the

officers in cheating, fabrication of records or misappropriation cannot be said

to be in discharge of their official duty. However, such sanction is necessary

if the offence alleged against the public servant is committed by him “while

acting or purporting to act in the discharge of his official duty” and in order

2 (1979) 4 SCC 177

3 (1993) 3 SCC 339

4 (2012) 3 SCC 64

6

to find out whether the alleged offence is committed “while acting or

purporting to act in the discharge of his official duty”, the yardstick to be

followed is to form a prima facie view whether the act of omission for which

the accused was charged had a reasonable connection with the discharge of

his duties. [See State of Maharashtra Vs. Dr. Budhikota Subbarao]

5

. The real

question, therefore, is whether the act committed is directly concerned with

the official duty.

10. We have to apply the aforesaid test to the facts of the present case. In

that behalf, the factum of Respondent No.2 not being named in the FIR is not

of much significance as the alleged role came to light later on. However,

what is of significance is the role assigned to him in the alleged infraction,

i.e. conspiring with his superiors. What emerges therefrom is that insofar as

the processing of the papers was concerned, Surendra Kumar Mathur, the

Executive Officer, had put his initials to the relevant papers which was held

in discharge of his official duties. Not only that, Sandeep Mathur, who was

part of the alleged transaction, was also similarly granted protection. The

work which was assigned to Respondent No.2 pertained to the subject matter

of allotment, regularisation, conversion of agricultural land and fell within his

domain of work. In the processing of application of Megharam, the file was

initially put up to the Executive Officer who directed the inspection and the

inspection was carried out by the Junior Engineer and only thereafter the

Municipal Commissioner signed the file. The result is that the superior

5 supra

7

officers, who have dealt with the file, have been granted protection while the

clerk, who did the paper work, i.e. Respondent No.2, has been denied similar

protection by the trial court even though the allegation is of really conspiring

with his superior officers. Neither the State nor the complainant appealed

against the protection granted under Section 197 of the CrPC qua these two

other officers.

11. We are, thus, not able to appreciate why a similar protection ought not

to be granted to Respondent No.2 as was done in the case of the other two

officials by the Trial Court and High Court respectively. The sanction from

competent authority would be required to take cognisance and no sanction

had been obtained in respect of any of the officers. It is in view thereof that

in respect of the other two officers, the proceedings were quashed and that

is what the High Court has directed in the present case as well.

12. In view of the aforesaid, the appeals are dismissed leaving the parties

to bear their own costs.

……..……………………………….J.

 [SANJAY KISHAN KAUL]

……..……………………………….J.

 [HEMANT GUPTA]

NEW DELHI.

JULY 23, 2021

8

What constitutes a contract as per clause (ix) itself includes the NIT, the acceptance of the tender, the formal agreement to be executed between the parties post contractor furnishing all the documents and the bid security amount. The result of the aforesaid is that as rightly held in terms of the impugned order all that the appellants can do is to forfeit the bid security amount and, thus, it was so directed. Since as a pre-condition of any coercive action against the respondent, the High Court called upon the appellants to deposit a sum of Rs.10 lakh in terms of the interim order dated 04.08.2010, a direction is made to deduct the bid security amount out of the sum of Rs.10 lakh and to refund the balance amount to the respondent. The needful would now have to be done within two months as in terms of the interim order of this Court dated 08.02.2013 such refund has been stayed. We accordingly dismiss the appeal.

Bids were received and respondent was the successful bidder. In view thereof a Letter of Intent (‘LoI’) was issued bearing No.2415 dated 05.10.2009 awarding the contract for a total work of Rs.387.40 lakh.

The respondent filed a writ petition under Articles 226 & 227 of the Constitution of India seeking quashing of the termination letter dated 15.04.2010 the recovery order dated 16.07.2010.

Division Bench of the Chhattisgarh High Court opined that there was no subsisting contract inter se the parties to attract the general terms and conditions as applicable to the contract. Various clauses of the NIT were referred to and it was opined that there could not be a valid contract inter se the parties as it was subject to completion of certain formalities by the respondent, which were never completed, i.e. furnishing of the performance security; and the consequence was that the appellant was within their rights to cancel the award of work and forfeit the bid security.Thus, only the forfeiture of bid security was upheld while the endeavour of the appellants to recover the additional amount in award of contract to another contractor as compared to the respondent was held not recoverable. We may notice at the stage of admission of the writ petition and issuing notice, the respondent was directed to deposit a sum of Rs.10 lakh vide order dated 04.08.2010 and subject to the same the endeavour to recover any amount from the respondent was stayed. Thus, in the final order it was mentioned that after deducting the bid security amount, the balance amount out of Rs.10 lakh was to be refunded to therespondent.

Held that 

What constitutes a contract as per clause (ix) itself includes the NIT, the acceptance of the tender, the formal agreement to be executed between the parties post contractor furnishing all the documents and the bid security amount. The result of the aforesaid is that as rightly held in terms of the impugned order all that the appellants can do is to forfeit the bid security amount and, thus, it was so directed. Since as a pre-condition of any coercive action against the respondent, the High Court called upon the appellants to deposit a sum of Rs.10 lakh in terms of the interim order dated 04.08.2010, a direction is made to deduct the bid security amount out of the sum of Rs.10 lakh and to refund the balance amount to the  respondent. The needful would now have to be done within two months as in terms of the interim order of this Court dated 08.02.2013 such refund has been stayed. We accordingly dismiss the appeal.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4358 OF 2016

SOUTH EASTERN COALFIELDS LTD. & ORS. ... Appellants

Versus

M/s. S. KUMAR’s ASSOCIATES AKM (JV) ...Respondent

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. South Eastern Coalfields Ltd., appellant no.1 is a Government

company registered under the Companies Act, 1956. The

appellant no.1 floated a tender for the work of “Hiring of HEMM

and allied equipments including digging machines fitted suitable

slump breaker for excavating overburden (including drilling in all

kinds of strata/overburden) loading into tipples, transportation,

unloading the extra waited material and silt, dumping dozing

scrapping/removal bands preparation/maintenance of haul road

water sprinkling and spreading of material at the site shown and

[1]

as per direction of the management/Engineer In Charge of PatchD, Mahan I OCM of Bhatgaon Area” on 23.06.2009. Bids were

received and respondent was the successful bidder. In view

thereof a Letter of Intent (‘LoI’) was issued bearing No.2415

dated 05.10.2009 awarding the contract for a total work of

Rs.387.40 lakh. The LoI stated as under:

i. A direction was made to the respondents to mobilize

equipment for executing the work to handle minimum

allotted Cu.m. per day and “commence the work

immediately.” Towards the said objective the

respondent was directed to report to the Chief General

Manager, Bhatgaon Area for “immediate

commencement of work.”

ii. The respondent was called upon to deposit Performance

Security Deposit for a sum total to 5% of annualized

contract amount within 28 days from the date of receipt

of the LoI as per the provisions of the tender document.

iii. Sign the Integrity Pact before entering into the

agreement in accordance with the tender document.

iv. The work order would be issued and the agreement

would be executed at the Area Office.

[2]

v. The date of commencement of work may be intimated

to the issuing office and agreement may be concluded

within 28 days as per the provisions of the tender

document.

2. The respondent, in pursuance of the LoI, mobilized resources

at site and a measurement team was sent by appellant no.1 as

intimated vide letter dated 09.10.2009. On 28.10.2009, the

appellant issued a letter of site handover/acceptance

certificate, which was to be taken as the date of

commencement of the work.

3. The respondent apparently faced difficulties soon thereafter

and the letter dated 05.12.2009 of the respondent records that

though the work was started in all earnest and considerable

quantity of overburden had been removed, the truck mounted

drill machine employed by the respondent suffered a major

breakdown. The work, thus, had to be suspended for reasons

beyond the control of the respondent. The endeavour to

rectify the position or arrange alternative machinery did not

work out and the letter states that the purchase of new

machines was expected only after about three months. The

[3]

contractual relationship apparently deteriorated as on

09.12.2009, the appellants issued a letter alleging breach of

terms of contract and rules and regulations applicable by the

respondent. The appellant further asked the respondent to

show cause as to why penal action be not initiated of – (a)

termination of work; (b) blacklisting of the respondent

company; and (c) award of execution of work to other

contractor at the cost and risk of the respondent.

4. Communications in this behalf continued to be exchanged and

vide letter dated 12.12.2009, the appellants brought to the

notice of the respondents that they failed to submit the

performance security deposit which was required to be

submitted within 28 days from the date of the receipt of the

LoI as per the terms of the tender. Another show cause notice

was issued on 15.12.2009 intimating to the respondent that the

appellants were left with no option except to terminate the

work awarded to the respondent and get it executed by other

contractor at the risk and cost of the respondent in terms of

clause 9.0 of the General Terms & Conditions of the Notice

Inviting Tenders (‘NIT’) giving a ten days’ time to the

respondent to respond. It appears that there was no response

[4]

and on 23.12.2009, once again, a notice of termination was

issued. The respondent objected to the same, stating that the

work could not be executed at their risk and cost as the

General Terms & Conditions were never part of the NIT but

form the part of the contract which was never executed inter

se the parties. In substance, the respondent objected to the

invocation of the clause for the work to be carried out at their

risk and cost. The appellant could not rely on clause 9.0 of the

General Terms & Conditions. The final termination of work

was carried out vide letter dated 15.04.2010.

5. It appears that thereafter the work was awarded to another

contractor at a higher price and on account thereof a letter

dated 16.07.2010 was issued by the appellants to the

respondent seeking an amount of Rs.78,07,573/- being the

differential in the contract value between the respondent and

the new contractor.

6. The respondent filed a writ petition under Articles 226 & 227

of the Constitution of India seeking quashing of the

termination letter dated 15.04.2010 the recovery order dated

16.07.2010. The writ petition was contested by the appellants

who filed their counter affidavit. In terms of the impugned

[5]

judgment dated 07.11.2012, the Division Bench of the

Chhattisgarh High Court opined that there was no subsisting

contract inter se the parties to attract the general terms and

conditions as applicable to the contract. Various clauses of the

NIT were referred to and it was opined that there could not be

a valid contract inter se the parties as it was subject to

completion of certain formalities by the respondent, which

were never completed, i.e. furnishing of the performance

security; and the consequence was that the appellant was

within their rights to cancel the award of work and forfeit the

bid security. Thus, only the forfeiture of bid security was

upheld while the endeavour of the appellants to recover the

additional amount in award of contract to another contractor as

compared to the respondent was held not recoverable. We

may notice at the stage of admission of the writ petition and

issuing notice, the respondent was directed to deposit a sum of

Rs.10 lakh vide order dated 04.08.2010 and subject to the

same the endeavour to recover any amount from the

respondent was stayed. Thus, in the final order it was

mentioned that after deducting the bid security amount, the

balance amount out of Rs.10 lakh was to be refunded to the

[6]

respondent.

7. The appellant filed Special Leave Petition against the said

order and notice was issued on 08.02.2013. The direction to

refund the balance amount of Rs.10 lakh after deducting the

bid security amount was stayed till further orders. Leave was

granted on 13.04.2016.

Submissions of the Appellants

8. The substratum of the case of the appellants is based on a plea

that the requirement of deposit of performance security limited

to 5% of annualized contract amount within 28 days as well as

the requirement to sign the Integrity Pact before entering into

the agreement was not a pre-condition to the execution of the

agreement but a “condition subsequent”. By starting the

execution of the work from 28.10.2009, learned counsel

submitted, there was acceptance of the award of the work by

the respondent. In fact, the respondent vide letter dated

05.12.2009 acknowledged that they had removed considerable

amount of overburden and, thus, it is their own case that they

had carried out substantive work after mobilization of the

resources immediately after the issuance of LoI. Thus, the

[7]

absence of formal execution of the contract did not make a

difference to the claim of the appellants arising from the

breach of contract.

9. The distinction between a ‘condition precedent’ and a

‘condition subsequent’ was pleaded to be the crux of the issue

and had not been appreciated by the High Court. To support

his contention learned counsel referred to two judgments: (a)

Jawahar Lal Burman v. Union of India1

 and (b) Dresser

Rand S.A. v. Bindal Agro Chem Ltd. & Anr.2

10. In Jawahar Lal Burman3

 case the factual matrix was that the

tender was accepted by the respondent therein, which was

alleged to have concluded the contract. The respondent’s case

therein was that the contract was governed by the general

conditions of contract which included an arbitration

agreement. The Supreme Court inter alia examined whether

there was a concluded contract between the parties or not. The

tender submitted was on a condition that on the acceptance of

the tender, the contractor shall deposit the security deposit, at

the option of the Secretary, Department of Supply, within the

1 (1962) 3 SCR 769

2 (2006) 1 SCC 751

3 Supra

[8]

period specified by him. A further condition stipulated that if,

on being called upon to deposit the said security, the

contractor fails to provide security within the period, such

failure would constitute a breach of contract entitling the

opposite party to make other arrangements at the risk and

acceptance of the contractor. The contractor sought to argue

that the acceptance letter changed the pre-existing position and

made the security deposit a condition precedent to the

acceptance itself and, thus, there was no concluded contract.

We may notice that in the relevant letter issued by the

awarding party in this regard, calling upon the security deposit

of 10% to be deposited it was clearly mentioned that “the

contract is concluded by this acceptance and formal

acceptance of tender will follow immediately on receipt of

treasury receipt.” This Court, thus, discussed the ramification

of this sentence vis-à-vis the clause stating “subject to your

depositing 10% as security”. In construing the true effect of

the clause such requirement of deposit of security was held not

to be a condition precedent as the letter, as well as the

conditions of the tender, clearly stated that the contract was

concluded by its acceptance. Section 7 of the Indian Contract

[9]

Act, 1872 requires the acceptance of an offer to be absolute

and unqualified and not conditional. In the facts of the case

the acceptance was found to be unconditional and the steps

were taken as the contract was intended to be executed

expeditiously relating to delivery of coconut oil which had to

be supplied within 21 days. The security deposit was, thus,

opined to be a subsequent condition.

11. In Dresser Rand S.A.4

, the contract was to come into force

upon receipt of the LoI by the supplier. The Supreme Court

recognized the well settled principles of law that a LoI merely

indicates party’s intention to enter into a contract with the

other party in future and is not intended to bind either party

ultimately to enter into a contract. In this behalf observations

in an earlier judgment in Rajasthan Coop. Dairy Federation

Ltd. v. Maha Laxmi Mingrate Marketing Service (P) Ltd.5

were referred to at page 773 para 39, which reads as under:

“The letter of intent merely expressed an intention to enter

into a contract. ….There was no binding legal relationship

between the appellant and respondent No.1 at this stage

and the appellant was entitled to look at the totality of

circumstances in deciding whether to enter into a binding

contract with respondent No.1 or not.”

4 Supra

5 (1996) 10 SCC 405

[10]

This was, however, followed by a caveat that it could also not

be disputed that a letter of intent may be construed as a letter

of acceptance if such intention is evident from its terms. It is

not uncommon in contracts involving detailed procedure, that

in order to save time, a letter of intent communicating the

acceptance of the offer is issued asking the contractor to start

the work with a stipulation that the detailed contract would be

drawn up later. Though such a letter may be termed as a letter

of intent, it may amount to acceptance of the offer resulting in

a concluded contract between the parties. This is a matter to

be decided with “reference to the terms of the letter.” It was

further observed that where the parties to a transaction

exchanged letters of intent, the terms of such letters may have

negative contractual intention but where the language does not

have negative contractual intention, it is open to the courts to

hold that the parties are bound by the document and the courts

would be inclined to do so where the parties have acted on the

document for a long period of time or have expended

considerable sums of money in reliance on it.

12. The terms of LoI were adverted to, more specifically clause

[11]

(L) therein, which stated that “this contract will come into

force upon receipt of this letter of intent by supplier.” In the

different clauses the LoI were referred to as “this order” and

“this contract” and it was, thus, argued to that the LoI be

treated as purchase orders. The Court harmoniously construed

the terms of the LoI to find that the effect of the LoI was that

if the purchase orders were placed and LCs were opened the

supplier was bound to effect supplies within the stipulated

time at the prices stated in the LoI. It was not interpreted as a

work order despite the wording utilized in the LoI.

Submissions of the Respondent

13. Learned counsel for the respondent, on the other hand, first

sought to emphasise the aspect discussed in para 39 of the

judgment in Dresser Rand S.A.6

case, which opined what an

LoI was by referring to the earlier view of this Court in

Rajasthan Coop. Dairy Federation Ltd.7

 case. He further

sought to refer the judgment of this Court in Bhushan Power

& Steel Ltd. v. State of Odisha8

 and drew our attention to what

an LoI was. The nomenclature of the letter would not be the

6 Supra

7 Supra

8 (2017) 2 SCC 125

[12]

determinative factor but the substantive nature of the letter

would determine whether it can be treated as an LoI, which as

per the legal dictionary means a preliminary understanding

between the parties who intend to make a contract or join

together in another action. Some earlier precedents were also

referred to.9

 In fact the judgment in Dresser Rand S.A.10 case

was also referred to therein, more specifically paras 39 & 40.

The LoI in question was held not to be a binding contract

more specifically because entering into a lease license with

prospective licensee would require “previous approval” of the

Central Government. The LoI was held to amount to only an

intention to enter into a contract which would take place after

all other formalities are completed.

14. In order to substantiate his pleas, learned counsel for the

respondent referred to various clauses of the NIT and the LoI.

The relevant clauses in the tender document referred to are as

under:

“29. Notification of the award and signing of agreement:

29.1 The bidder, whose bid has been accepted will be

notified of the award by the employer prior to expiration of

9 Rishi Kiran Logistics Private Limited v. Board of Trustees of Kandla Port Trust

and Others (2015) 13 SCC 233

10 (supra)

[13]

the bid validity period by cable, telex and facsimile

confirmed by registered letter. This letter (hereinafter and

in Conditions of Contract called the “Letter of

Acceptance”) will state the sum that the Employer will pay

the Contractor in consideration of execution and

completion of the Works by the contractor as prescribed by

the Contract (hereinafter and in the Contract called “the

Contract Price”).

29.2 The notification of award will constitute the

formation of Contract, subject only to the furnishing of a

Performance Security/Security Deposit in accordance with

clause 30.

29.3 The agreement will incorporate all agreements

between the employer and the successful bidder within 28

days following the notification of award along with the

letter of acceptance.

30. Performance Security/Security Deposit

30.1 Security Deposit shall consist of two parts:

a. Performance Security to be submitted at award of

work and

b. Retention Money to be recovered from running bills.

The Security Deposit shall bear no interest.

30.2 The performance Security should be 5% of

annualized value of the contract amount and should be

submitted within 28 days of receipt of LOA by the

successful bidder in any of the form given below:

- A Bank Guarantee in the form given in the bid

document.

- Govt. Securities, FDR or any other form of deposit

stipulated by the owner.

[14]

- Demand Draft drawn in favour of the South Eastern

Coal Fields Ltd. on any Schedule Bank payable at its

Branch at……….

The bid security deposit in the form of Bank

Guarantee shall be duly discharged and returned to the

contractor. The bid security deposited in the form of

demand draft shall be adjusted against the initial security

deposit.

If the performance security is provided by the successful

bidder in the form of bank guarantee it shall be issued

either:

a. at bidder’s option by a nationalized/scheduled Indian

bank, or

b. by a foreign bank located in India and acceptable to

the employer,

c. the validity of the bank guarantee shall be for a

period of one year or ninety days beyond the period of

contract, whichever is more.

Failure of the successful bidder to comply with the

requirement as above shall constitute sufficient ground for

cancellation of the award of work and forfeiture of the bid

security.

34. Integrity Pact

SECL has signed MOU with M/s. Transparency

International India for implementation of integrity pact in

contracts for works valued at Rs.1.00 crore and above. The

integrity pact document to be signed by the bidders is

enclosed vide Annexure “D”. Submission of integrity pact

document duly signed, stamped and accepted is mandatory

for this tender and is integral part of the tender document.

In case this is not submitted the tender may be considered

as not substantially responsive and may be rejected.

[15]

…. …. …. …. ….

Section 3: Conditions of contract/General Terms and

Conditions

1. Definition: ix. The “Contract” shall mean the notice

inviting tender, the tender as accepted by the company and

the formal agreement executed between the company and

the contractor together with the documents referred to

therein including general terms and conditions, special

conditions, if any, schedule quantities with rates and

amount, schedule of work.

2.0 Contract Documents

i. Articles of agreement,

ii. Notice inviting tender,

iii. Letter of Acceptance of tender indicating deviations,

if any, from the conditions of contract incorporated in the

bid/tender document issued to the bidder,

iv. Conditions of contract including general terms and

conditions, additional terms and conditions, special

conditions, if any etc. forming part of agreement,

v. Scope of works/Bills of quantities and

vi. Finalised work programme.”

15. Learned counsel laid great emphasis on clause 29.2 aforesaid,

which provided that notification of award will constitute the

formation of contract, “subject only” to the furnishing of a

Performance Security/Security Deposit in accordance with

[16]

clause 30. The agreement to be executed was to incorporate

all the terms inter se the parties. The consequence of not

furnishing the security deposit was specified in clause 30.2 at

the end, i.e., it was to constitute sufficient ground for

cancellation of the award work and forfeiture of the bid

security. In terms of clause 34 requiring Integrity Pact

document to be submitted duly signed, the consequence of not

doing so was that the tender was to be considered as not

substantially responsive and may be rejected. Lastly under

Section 3, the Conditions of contract/General Terms and

Conditions where it was defined in clause (ix) that a contract

would mean the NIT and the formal agreement to be executed

between the appellants and the respondent together with the

documents referred to therein indicating the general terms and

conditions, special conditions, if any, schedule quantities with

rates and amount, schedule of work.

16. It was further contended that after acceptance of tender and on

execution of contract, work order had to be issued which had

also not been issued as the preliminaries were not complied

with. The LoI was also referred to in the aforesaid context to

show that nothing was done in pursuance thereto except

[17]

mobilization of the resources and commencement of the work,

and that by itself could not be said to be a concluded contract.

In fact, what was submitted by learned counsel for the

respondent was that seeing the ground realities, the respondent

found that it was not feasible to execute the contract and, thus,

walked away from it, the consequence of which could only be

the forfeiture of the bid security amount as directed by the

impugned order, an aspect assailed by the respondent by filing

a cross appeal. The respondent has not been paid by the

appellant for whatever they may have done.

17. A reference was also made to the judgment in State of

Madhya Pradesh And Anr. v. Firm Gobardhan Dass Kailash

Nath11 where in respect of a tender for Government sale initial

deposit of 25% of purchase price was an essential precondition for acceptance or sanction of tender was not

complied with. It was held that taking into consideration what

was required to enter into a contract, i.e., in writing and in

prescribed form and 25% amount not being deposited, it could

not be said that any concluded contract was arrived at between

the parties.

11 AIR 1973 SC 1164 :: (1973) 1 SCC 668

[18]

Conclusion

18. A consideration of the matter in the conspectus of the

aforesaid pleas leads to a conclusion that it cannot be said that

a concluded contract had been arrived at inter se the parties.

19. We have already reproduced aforesaid the terms of the letter of

award and what it mandated the respondent to do. None of the

mandates were fulfilled except that the respondent mobilized

the equipment at site, handing over of the site and the date of

commencement of work was fixed vide letter dated

28.10.2009. Interestingly this letter has been addressed to the

Sub Area Manager of the appellant by the office of the

appellant. The respondent, thus, neither submitted the

Performance Security Deposit nor signed the Integrity Pact.

Consequently, the work order was also not issued nor was the

contract executed. Thus, the moot point would be whether

mobilization at site by the respondent would amount to a

concluding contract inter se the parties. The answer to the

same would be in the negative.

20. We would like to state the issue whether a concluded contract

had been arrived at inter se the parties is in turn dependent on

[19]

the terms and conditions of the NIT, the LoI and the conduct

of the parties. The judicial views before us leave little doubt

over the proposition that an LoI merely indicates a party’s

intention to enter into a contract with the other party in

future.12 No binding relationship between the parties at this

stage emerges and the totality of the circumstances have to be

considered in each case. It is no doubt possible to construe a

letter of intent as a binding contract if such an intention is

evident from its terms. But then the intention to do so must be

clear and unambiguous as it takes a deviation from how

normally a letter of intent has to be understood. This Court

did consider in Dresser Rand S.A.13 case that there are cases

where a detailed contract is drawn up later on account of

anxiety to start work on an urgent basis. In that case it was

clearly stated that the contract will come into force upon

receipt of letter by the supplier, and yet on a holistic analysis –

it was held that the LoI could not be interpreted as a work

order.

21. Similarly if we construe the documents as discussed in the

12 Dresser Rand S.A. (supra); Rajasthan Coop. Dairy Federation Ltd. (supra)

13 Supra

[20]

judgment of this Court in Jawahar Lal Burman14 case it is

unequivocally mentioned that “contract is concluded by this

acceptance and formal acceptance of tender will follow

immediately on receipt of treasury receipt.” Thus, once again,

it has been stipulated as to at what time a contract would stand

concluded even though it was later subject to deposit of the

security amount. It was in these circumstances that the

requirement of security deposit was treated not as a condition

precedent but as a condition subsequent. We have to also

appreciate the nature of contract which was for immediate

requirement of the full quantity of coconut oil to be supplied

within 21 days. It was also explicitly mentioned in the LoI

itself that any failure to deposit the stipulated amount would

be treated as a breach of contact. This is not the case here,

where the consequence was simply forfeiture of the bid

security amount, and cancellation of the ‘award’ and not the

‘contract’.

22. If we compare the aforesaid scenario in the present case, the

period for execution of the contract was one year. The

respondent worked at the site for a little over the month,

14 Supra

[21]

facing certain difficulties – it is immaterial whether the same

was of the own making of the respondent or attributable to the

appellants. No amount was paid for the work done. The

respondent failed to comply with their obligations under the

LoI. It is not merely a case of the non-furnishing of

Performance Security Deposit but even the Integrity Pact was

never signed, nor work order issued on account of failure to

execute the contract. We are, thus, of the view that none of the

judgments cited by learned counsel for the appellants would

come to their aid in the contractual situation of the present

case. The judgments referred by learned counsel for the

appellants Jawahar Lal Burman15 case and Dresser Rand

S.A.16 case, if one may say so are not directly supporting either

of the parties but suffice to say that to determine the issue

what has to be seen are the relevant clauses of the NIT and the

LoI. On having discussed the non-compliance by the

respondent of the terms of the LoI we turn to the NIT. Clause

29.2 clearly stipulates that the notification of award will

constitute the formation of the contract “subject only” to

furnishing of the Performance Security/Security Deposit.

15 Supra

16 Supra

[22]

Thus, it was clearly put as a pre-condition and that too to be

done within 28 days following notification of the award. The

failure of the successful bidder to comply with the requirement

“shall constitute sufficient ground for cancellation of the

award work and forfeiture of the bid security” as per clause

30.2. If we analyse clause 34 dealing with the Integrity Pact

the failure to submit the same would make the tender bid “as

not substantially responsive and may be rejected.”

23. We may also add that the definition of what constitutes a

contract as per clause (ix) itself includes the NIT, the

acceptance of the tender, the formal agreement to be executed

between the parties post contractor furnishing all the

documents and the bid security amount.

24. The result of the aforesaid is that as rightly held in terms of the

impugned order all that the appellants can do is to forfeit the

bid security amount and, thus, it was so directed. Since as a

pre-condition of any coercive action against the respondent,

the High Court called upon the appellants to deposit a sum of

Rs.10 lakh in terms of the interim order dated 04.08.2010, a

direction is made to deduct the bid security amount out of the

sum of Rs.10 lakh and to refund the balance amount to the

[23]

respondent. The needful would now have to be done within

two months as in terms of the interim order of this Court dated

08.02.2013 such refund has been stayed.

25. We accordingly dismiss the appeal leaving the parties to bear

their own costs.

26. Interim order stands discharged.

……...............................…..J.

 [SANJAY KISHAN KAUL]

……....................................J.

 [HEMANT GUPTA]

NEW DELHI,

July 23, 2021.

[24]

On careful examination of the guidelines/ instructions issued in G.O.Rt.No.100, dated 16.07.2021, in the considered opinion of this Court, the guidelines/instructions are issued in the interest of public in general and devotees/Musallies of Muslim community in particular in view of the COVID-19 pandemic which caused loss to the lives of the people of the country never seen before. Lives of the people is important than the religious beliefs. Therefore, in the considered opinion of this Court, the G.O.Rt.No.100, dated 16.07.2021 is issued in the interest of public at large in view of the COVID-19 pandemic and as such, it is not violative of Article: 25 and 26 of the Constitution of India.

On careful examination of the guidelines/ instructions issued in G.O.Rt.No.100, dated 16.07.2021, in the considered opinion of this Court, the guidelines/instructions are issued in the interest of public in general and devotees/Musallies of Muslim community in particular in view of the COVID-19 pandemic which caused loss to the lives of the people of the country never seen before. Lives of the people is important than the religious beliefs. Therefore, in the considered opinion of this Court, the G.O.Rt.No.100, dated 16.07.2021 is issued in the interest of public at large in view of the COVID-19 pandemic and as such, it is not violative of Article: 25 and 26 of the Constitution of India.

AP HIGH COURT

 1

HON’BLE SRI JUSTICE BATTU DEVANAND

WRIT PETITION No.14231 OF 2021

ORDER:

This writ petition has been filed by the petitioner

seeking to issue a writ or direction more particularly in

the nature of a Writ of Mandamus under Article 226 of

the Constitution of India declaring the action of the

respondents in issuing G.O.Rt.No.100, dated

16.07.2021 imposing restrictions on Eid-ul-Adha

(Bakrid) prayers at Eidgahs and directing to offer

prayers in Masjids only is illegal and arbitrary, customs

and beliefs of Islam and violation of Art.25 & 26 of

Constitution of India and consequently permit the

people of Muslim community belonging to Nellore to

offer prayers Eid-ul-Adha (Bakrid) in Bara Shahid

Eidgah and other Eidgahs situated at Nellore on

20.07.2021 or 21.07.2021 (depending on moon sight)

by suspending the G.O.Rt.No.100, dated 16.07.2021

and pass such other order or orders may deem fit and

proper in the circumstances of the case.

2) Heard Sri C. Subodh, learned counsel for the

petitioner and the learned Government Pleader for 

 2

Social Welfare appearing for the respondents and

perused the material available on record.

3) The petitioner is the resident of Nellore and

belongs to Muslim community and has strong belief in

Islam Religion and faith. Eid-ul-Adha (also called as

Festival of Sacrifice or Bakrid) is one of the two

important festivals celebrated within Islam (the other

being Eid-Al-Fitr).

4) Learned counsel for the petitioner submits that the

devotees on Eid-Al-Adha perform prayers at Eidgah.

The Eidgah is defined as Open Air enclosure usually

outside the city (or at outskirts) reserved for Eid

Prayers offered in the morning of Eid-Al-Fitr and Eid-AlAdha. It is usually a public place i.e., not used for

prayers at other times of the year. On the day of Eid,

the first thing Muslims do in the morning is gather

usually at a large open ground and offer special prayers

in accordance with Sunnah (Tradition of Mohammed).

5) Learned counsel for the petitioner further submits

that the Eid Al-(Adha) prayer is performed any time

after sun completely rises up to just before entering of 

 3

Zuhr Time on the 10th of Dhu al-Hijjah. The Eid

prayers must be offered in congregation. The

performing The Eid Al-(Adha) prayers at Eidgah without

any valid excuse, not offering Eid Prayers in the Eidgah

is contrary to Sunnah (Tradition of Mohammed).

6) The 2nd respondent informed the 1st respondent

vide letter No.E1/20/2019-AP, dated 12.07.2021 that

the Government of Andhra Pradesh on 03.05.2021 as

imposed curfew with effect from 05.05.2021 and

subsequently extended time and dates from time to

time to take all precautionary measures D-linking the

spread of COVID pandemic. It is further stated that

this year Eid Ul Azha (Bakrid) is scheduled to be held

on 21.07.2021 (subject to moon sight) and requested

for issuance of necessary instructions to District

Collectors, Commissioners, Superintendents of Police in

respect of performance of Eid Prayers during Eid-UlAzha and for Qurbani. Considering the same, the 1st

respondent issued G.O.Rt.No.100, dated 16.07.2021

issued guidelines to be followed during Eid-Ul-Adha

(Bakrid) festival on 21.07.2021.

 4

7) The main grievance of the petitioner is that apart

from the other guidelines issued, prohibiting Eid-UlAdha (Bakrid) prayers Eidgahs and directing to offer

prayers in Masjids only as illegal, arbitrary, customs

and beliefs of Islamic and violation of Article 25 and 26

of the Constitution of India.

8) On the other hand, learned Government Pleader

appearing for the respondents submits that

G.O.Rt.No.100, dated 16.07.2021 is issued in the

interest of public in view of COVID-19 pandemic and

sought for dismissal of the writ petition, as interference

of this Court is not warranted.

9) Having heard the submissions of the learned

counsel and upon perusal of material available on

record, it appears that the Government of Andhra

Pradesh on 03.05.2021 has imposed curfew with effect

from 05.05.2021 and subsequently extended time and

dates from time to time to take all precautionary

measures in delinking the spread of COVID pandemic.

The 2nd respondent vide letter, dated 12.07.2021

brought to the notice of the 1st respondent that

Government have issued necessary precautionary 

 5

guidelines to be followed especially during the Eid-UlAzha (Bakrid) Eid prayers for the previous year in view

of the pandemic COVID-19. The 2nd respondent

requested the 1st respondent for issuance of necessary

instructions to the District Collectors and

Commissioners/Superintendents of Police in respect of

performance of Eid prayers during Eid-Ul-Azha and for

Qurbani is scheduled to be held on 21.07.2021 (subject

to moon sight).

10) Considering these facts, the 1st respondent issued

certain guidelines/instructions to be followed in

ensuring Eid-Ul-Azha (Bakrid Festival on 20.07.2021 or

21.07.2021 depending on the moon sight.

11) On careful examination of the guidelines/

instructions issued in G.O.Rt.No.100, dated

16.07.2021, in the considered opinion of this Court, the

guidelines/instructions are issued in the interest of

public in general and devotees/Musallies of Muslim

community in particular in view of the COVID-19

pandemic which caused loss to the lives of the people

of the country never seen before. Lives of the people is

important than the religious beliefs. 

 6

12) Therefore, in the considered opinion of this Court,

the G.O.Rt.No.100, dated 16.07.2021 is issued in the

interest of public at large in view of the COVID-19

pandemic and as such, it is not violative of Article: 25

and 26 of the Constitution of India.

13) Accordingly, this Writ Petition is dismissed. There

shall be no order as to costs.

As a sequel, miscellaneous petitions pending, if

any, shall stand closed.

______________________________

JUSTICE BATTU DEVANAND

Date: 20.07.2021

PGR

 7

HON’BLE SRI JUSTICE BATTU DEVANAND

WRIT PETITION No.14231 OF 2021

Dt: 20.07.2021

PGR

The petitioner is lady who has been taking shelter in the house of her parents at Rajahmundry which is at a distance of 200 kms from Vijayawada. The submissions made by the petitioner in the petition have not been controverted by the respondent who failed to respond to the notice sent to him. It appears that in two cases filed by the petitioner the respondent has made his appearance and that no prejudice will be caused to him if the case filed by him for restitution of conjugal rights is transferred to Family Court at Rajahmundry. The difficulty of the petitioner to attend for each and every adjournment in which is filed by her husband in the court of Judge, Family Court-cum-XIV Additional and Sessions Court, Vijayawada by undertaking journey of 200 kms from the place of her residence at Rajahmundry can be a reasonable ground to accede to her request made for transfer of HMOP filed by her husband for restitution of conjugal rights to the Family Court at Rajahmundry.

The petitioner is lady who has been taking shelter in the house of her parents at Rajahmundry which is at a distance of 200 kms from Vijayawada. The submissions made by the petitioner in the petition have not been controverted by the respondent who failed to respond to the notice sent to him. It appears that in two cases filed by the petitioner the respondent has made his appearance and that no prejudice will be caused to him if the case filed by him for restitution of conjugal rights is transferred to Family Court at Rajahmundry. The difficulty of the petitioner to attend for each and every adjournment in  which is filed by her husband in the court of Judge, Family Court-cum-XIV Additional and Sessions Court, Vijayawada by undertaking journey of 200 kms from the place of her residence at Rajahmundry can be a reasonable ground to accede to her request made for transfer of HMOP filed by her husband for restitution of conjugal rights to the Family Court at Rajahmundry. Having regard to the submissions made on behalf of the petitioner, the transfer petition filed by the petitioner is allowed, ordering for transfer of HMOP.No.725 of 2020 from the file of Judge, Family Court-cum-XIV Additional and Sessions Court, Vijayawada to the Family Court at Rajahmundry, for its disposal in accordance with law. No costs. 

AP HIG COURT

 THE HON'BLE Ms JUSTICE J.UMA DEVI

Tr.C.M.P.No.61 of 2021

ORDER:

This petition is filed under Section 24 of CPC by Smt.Sapavath

Suddepthi, W/o.Sapavath Mahesh Sai Kumar Naik seeking transfer of

HMOP.No.725 of 2020 from the file of Family Court-cum-XIV Additional and

Sessions Court, Vijayawada to the Family Court at Rajahmundry, where she

is taking shelter in the house of her parents.

 Notice is ordered as against respondent. Despite service of notice,

he has not entered appearance.

 Petitioner’s contention is that having not been able to bear the

harassment of her husband she has reached to her parents’ house in the

month of March, 2019 and since then she is residing there. She has filed a

case for maintenance as against the respondent herein and the same is

pending for consideration before the court of IV Judicial 1st Class Chief

Metropolitan Magistrate at Rajahmundry. She also has filed a case as

against the respondent under Domestic Violence Act and the same is

pending before the court of VI Additional Judicial 1st Class Magistrate at

Rajahmundry. The respondent made appearance in both the cases. As a

counterblast to the cases filed by her, the respondent has filed

HMOP.No.725 of 2020 for restitution of conjugal rights and the same is

pending before the Judge, Family Court-cum-XIV Additional and Sessions

Court, Vijayawada. Her assertion is that she has to travel a distance of 200

kms necessarily to attend the court at Vijayawada where the application

made by her husband for restitution of conjugal rights is pending for

consideration; It becomes difficult for her to appear for each and every

adjournment in HMOP.No.725 of 2020 which is pending before the Family

Court-cum-XIV Additional and Sessions Court, Vijayawada by undertaking 

 JUD,J

Tr.CMP.61 of 2021

2

journey of 200 kms from Rajahmundry. Therefore, she is constrained to

approach this court seeking transfer of HMOP.No.725 of 2020 from the file

of Judge, Family Court-cum-XIV Additional and Sessions Court, Vijayawada

to the Family Court at Rajahmundry.

The petitioner is lady who has been taking shelter in the house of

her parents at Rajahmundry which is at a distance of 200 kms from

Vijayawada. The submissions made by the petitioner in the petition have

not been controverted by the respondent who failed to respond to the

notice sent to him. It appears that in two cases filed by the petitioner the

respondent has made his appearance and that no prejudice will be caused

to him if the case filed by him for restitution of conjugal rights is

transferred to Family Court at Rajahmundry.

The difficulty of the petitioner to attend for each and every

adjournment in HMOP.No.725 of 2020 which is filed by her husband in the

court of Judge, Family Court-cum-XIV Additional and Sessions Court,

Vijayawada by undertaking journey of 200 kms from the place of her

residence at Rajahmundry can be a reasonable ground to accede to her

request made for transfer of HMOP filed by her husband for restitution of

conjugal rights to the Family Court at Rajahmundry.

 Having regard to the submissions made on behalf of the petitioner,

the transfer petition filed by the petitioner is allowed, ordering for transfer

of HMOP.No.725 of 2020 from the file of Judge, Family Court-cum-XIV

Additional and Sessions Court, Vijayawada to the Family Court at

Rajahmundry, for its disposal in accordance with law. No costs.

Pending miscellaneous applications, if any, shall stand closed in

consequence.

Sd/-_______________

J.UMA DEVI,J

Date: 20.07.2021

Dsr