# Bachchey Lal v. State of U.P. and Ors

- **Citation:** (2014) 1 ILRA 322
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-03-26
- **Case number:** Crl. Writ-Public Interest Litigation No. 2357 of 1997
- **Bench:** Amar Saran, Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bachchey-lal-v-state-of-u-p-and-ors-42794
- **Pages:** 8

## Headnote

Constitution
of
India,
Art.-226-Public
Interest Litigation-direction for premature
release of convicts-in jail for more than 14
years-guide lines issued-to sort out problems
providing private health care for women
prisoners-the
District
Judge
and
jail
superintendent, Director General Medical
and Health to provide specialist government
women doctors for female inmates and their
children-further directions for smooth and
proper implementation of guide lines issued.

Held: Para-18 & 19

## Text

322 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner and it was found that the
petitioner was not suitable for the post of
constable. The order dated 7.9.2000 has also
been challenged by way of amendment.

12. The petitioner's appointment was
purely temporary and he was not on
probation, Regulation 541 is not applicable
and his services could be terminated under
the Rules of 1975.

13. For the reasons stated herein
above, the writ petition is devoid of merits
and is, accordingly, dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.03.2014

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.

Crl. Writ-Public Interest Litigation No.
2357 of 1997

Bachchey Lal..... Petitioner
Versus
State of U.P. and Ors...... Respondents

Counsel for the Petitioner:
From Jail

Counsel for the Respondents:
A.G.A., Sri Patanjali Mishra

Constitution
of
India,
Art.-226-Public
Interest Litigation-direction for premature
release of convicts-in jail for more than 14
years-guide lines issued-to sort out problems
providing private health care for women
prisoners-the
District
Judge
and
jail
superintendent, Director General Medical
and Health to provide specialist government
women doctors for female inmates and their
children-further directions for smooth and
proper implementation of guide lines issued.

Held: Para-18 & 19
18. The Registrar General, High Court and
the Member Secretary, U.P. Legal Services
Authority are directed to communicate and
ensure
compliance
of
the
aforesaid
directions and to submit a report on the next
listing. We also direct the Member Secretary
and Secretary, UPSLSA, not merely to
forward the responses received by the
Authority to this Court, but to pro-actively
issue directions to the DLSAs and to take
other necessary steps as these matters
relate to prisoners confined in jails and their
need for legal aid.

19. Copies of this order be provided to
Member Secretary, UPSLSA, all District
Judges for communicating to members of
DLSAs, CJMs and other concerned judicial
officers, District legal aid counsel, ADG
(Prisons), U.P. for communication to all Jail
superintendents, Law Secretary and LR,
Home Secretary, U.P., Director General
(Medical
and
Health),
U.P.,
learned
Government Advocate, learned AGA Sri
Vimlendu Tripathi, Special counsel for High
Court, Sri Sudhir Mehrotra, learned Amicus
Curiae, Sri Patanjali Mishra, and also to place
the same before the R.G. High Court for
compliance and submission of feedback on
next listing. We hope that the said
authorities or at least the high level
representatives on their behalf who are
capable of taking decisions in 13 the matters
and answering the queries that may be
raised by the Court, shall attend the hearing
on the next listing.

Case Law discussed:
(1978) 4 SCC 47; (1980) 1 SCC, 81.

(Delivered by Hon'ble Amar Saran, J.)

1. We have heard Sri Sudhir Mehrotra,
learned special counsel for the High Court,
learned Government Advocate Sri Akhilesh
Singh, Sri Vimlendu Tripathi, learned A.G.A
and Sri Patanjali Mishra, learned Amicus
Curiae appointed by this Court.

2. Learned A.G.A. has filed affidavits
on behalf of (a) Home Department, (b) I.G.
1 All] Bachchey Lal Vs. State of U.P. and Ors.
323
(Prison), Principal Secretary Medical and
Health and (c ) ADG/ IG (Prisons). He has
also filed 5 charts mentioning tabular details
as sought for by this Court. Reports by the
District Judges, forwarded by the registry
and UP SLSA (U.P. State Legal Services
Authority, Lucknow) have also been filed.

Directions for convicts in jail for
more than 14 years whose cases were to
be considered for premature release.

3. In our order dated 27.11.2013 we
have found the figure of 1223 such convicts
to be unacceptably high and had directed that
there should be a significant reduction in the
number of such convicts by the next listing.
Regretfully, the chart No. 1 relating to such
convicts prisoners, who have undergone 14
years and more actual sentence without
remission shows that the figure is still 1157.
There seems to be no significant reduction
from the earlier figure. The number of
convicts who have been actually freed after
the previous orders is not clear from the said
chart. It is also not clear from the chart as to
whether the nominal roles or the Form A
disposals are being held up at the D.M.'s, or
at the Jail, or at headquarters or at the
Government ( Advisory Board's) levels, but
the major hurdle appears to be at the District
Magistrates level. We would like better
information on the next listing about the
level at which delays are taking place and
issuance of directions to the District
Magistrates or other functionaries, where the
disposals may have got struck for expediting
the process. Explanations should also be
sought from these authorities for the reasons
for the delays, and why the G.O. dated 6.9.04
fixing the time schedule for consideration of
the matters at different stages is not being
strictly followed.

4. We are shocked to note that in
some cases, even though the prisoners
have been in jail for periods of 14 years and
much more mentioned at serial Nos. 2, 18,
19, 23, 92, 93, 96, 97, 100, 110, 152, 156,
167, 270, 276, 277, 288, 297, 302, 304, 307,
310, 314, 316, 319, 320, 321, 323, 326, 330,
331, 342, 345, 396, 666, 674, 676, 677, 681,
695, 696, 697, 706, 929, 986, 1006, 1007,
1008, 1009, 1019, 1020, 1022, 1057, 1149,
1150 of Chart I, where the considerations of
Forms A or nominal roles have been held
up at the Court level, because the judgments
are not available. One of the glaring
example is at S.N. 396 relating to Pappu @
Chandrapal, who is detained in Central Jail
Agra since last 29 years and his case has not
even been considered at the jail level
because of non availability of copy of
judgment. We would like an explanation
why even the judgements in the aforesaid
serial numbers and other similar cases are
not available, stalling consideration of
applications in Forms A or nominal roles,
even though the prisoners have been in jail
for 14 or more years. We direct that
immediate steps must be taken for making
the judgements available at the jail level.

5. Likewise, another disturbing
reason
for
non-consideration
of
applications in Form A for release on
Probation appears that guardian is not
available. A prisoner who has crossed 75
or more years of age may have lost his
wife or most of other relatives who are
accepted as guardians. Probation officers
often refuse to be guardians. The result is
that the applications in Form A of such
prisoners are not considered beyond the
jail level. Immediate directions must be
issued that absence of private guardians
will be no reason for non-consideration of
Form A, and that probation officers or
other suitable funcionary shall be given
the charge of his guardian on the release
of the convict onprobation or license.
324 INDIAN LAW REPORTS ALLAHABAD SERIES

6. A cursory perusal of Chart 1 shows
that prisoner Ambika Prasad at serial no.
474 aged 71 years is detained in Central
Jail, Varanasi for 47 years and only a letter
has been sent by the prisoner to the D.M. on
24.04.2011. Likewise prisoners at Serial
Nos. 28, 396, 397, 398, 399, 400, 461, 602,
614, 616, 618, 619, 848 and 849 have done
28 or more years, but their Form A
applications, nominal roles are pending at
different stages, including before the jail
authorities and the D.M. On the next date of
listing, we would like to have complete
records of all the prisoners, who have
undergone actual periods of more than 28
years in prison from all the jails and how
their remissions have been dealt with, and
what are the special reasons for not
releasing these 14 or 15 prisoners who have
undergone such inordinately long periods in
prisons, and whether there is any proposal
to expedite their applications for facilitating
their release. It should also be indicated
whether fresh applications have been
moved each year after the rejections of the
Forms A or nominal roles as per the
relevant G.O.

7. We also find from a perusal of
Chart I that there are about 153 convicts
above the age of 70 years who have
served out more than 14 years actual
period in prison and whose cases have
either not been considered for want of
judgments or proper guardians, or are
pending at the jail, D.M., headquarters or
government levels, or have been rejected
by the government by one line orders, that
they are unfit for release. Prima facie,
under normal circumstances there appears
no good reason for further detaining such
old prisoners (some of whom have
crossed 75, 80 or even 90 years, and some
are incapable of walking without support
or are suffering from other ailments),
whose continued detention is a burden on
the jail and the State after they have
served out 14 or more years, whose cases
cease to be covered by the 14 year
minimum period in jail restriction under s.
433 A Cr.P.C and who would normally be
expected to have lost any potentiality to
further commit a crime. We direct that the
applications in Form A, nominal roles or
mercy petitions of these approximately
153 prisoners who are over 70 years old
and have undgergone more than 14 years
be considered and decided within 3
months, and in the cases of rejection,
written orders be passed mentioning
reasons why further detention of this old
prisoner is necessary and the concrete
information on which this inference is
based, for perusal by this Court. Where
judgements are not available, they must
be obtained within two weeks. The
Registrar General and the District Judges
of the districts must ensure that the copies
of the judgments when requested for by
the jail or other authorities are provided
within
ten
days
of
the
demand.
Background
information
and
other
required formalities be completed and
joint meetings of the jail superintendents,
D.M.s,
and
S.S.Ps/
S.P.s
be
held
preferably in the jail or other suitable
premises, where the convict is available
within
6
weeks
for
immediate
consideration of the applications in Form
A or nominal roles, at the initial stage for
forwarding to the next level. No case
should remain pending for consideration
at the jail or other level for absence of
guardian, and in case the old prisoner is
unable to provide a guardian, the State
must issue an order directing probation
officers or other suitable functionaries to
act as guardians. The immediate progress
in compliance of this direction be
informed to this Court on the next listing.
1 All] Bachchey Lal Vs. State of U.P. and Ors.
325

Preparation
of
circulars
for
prisoners having served more than 14
years.

8. In the affidavit of compliance
filed
by
the
Home
Department,
Government
of
U.P.,
it
has
been
mentioned that an order has been passed
by another Division Bench in Criminal
Appeal No. 209 of 1993 Mewa Lal Vs.
State of U.P., wherein the said Court has
held that a prisoner, whose appeal is
pending, even if he has completed an
actual period of more than 14 years
cannot be released under the U.P.
Prisoner's Release on Probation Act, 1938
or on consideration of his nominal role.
This is contrary to view taken by this
Court in Criminal Misc. Writ Petition No.
2357 of 1997 by the order dated
27.11.2013 and also the Government
Order issued by the Government dated
14.7.2004. However, we are informed that
a Special Leave Petition challenging the
order of the D.B. in Criminal Appeal No.
209 of 1993, has been filed before the
Apex Court. Be that as it may, we fail to
understand why the other part of our
directions relating to preparation of a draft
circular for prisoners having served out
more than 14 years on the line of
Maharashtra Government circular dated
11.4.2008, which was shown to us by the
State in the interactive previous hearing in
chambers,
which
makes
a
detailed
categorisation of different categories of
crimes as mentioned in pages 4, 5, 6 and 7
of our previous order dated 27.11.2013,
has not been issued. We hope that by the
next listing at least a draft circular will be
produced before this Court for its perusal,
so that a proper Government Order can be
issued at the appropriate time, and the
problem of non-disposal of applications in
Form A or nominal roles which has
resulted in a very large number of
convicts (including very old or ailing
convicts) remaining in jail even after
periods where their further detention
appears futile.

Make the jailbandi.com website or
other website operational.

9. We regret to note that in spite of
our previous order jailbandi.com website
which was to detail the stages and
progress
of
consideration
of
their
applications under Form-A and nominal
roles has not been made operative, which
could have enabled the UP SLSA or other
authorities or persons to verify in a
transparent manner that the matters are
being dealt with in a proper manner and
the time schedule is being adhered to.
Learned A.G.A. informs that a new
website upprison.nic.in has been set up,
but he was not in a position to say
whether the data has been fed in the said
website or whether it is operational. We
would like proper details on these matters
on the next listing. The UPSLSA which is
required to keep a watch to ensure
whether the disposals of Forms A, and
nominal roles are taking place in a
scheduled time period should oversee
whether the web site is functioning and
monitor disposal of matters and report
compliance on each date of listing.

Sentence remission benefits for
prisoners serving fixed term sentences
not covered by section 433 A Cr. P. C.
restriction

10. In this connection, Chart 2 has
been furnished by the Jail Authorities,
which mentions that there are 1965 such
prisoners, who have undergone 1/3rd of
their sentence and would be eligible for
326 INDIAN LAW REPORTS ALLAHABAD SERIES
their Form A being considered. We regret
to note that neither prisoners have been
identified, nor does it appear that any
action has been taken for releasing the
prisoners, which would help reduce the
prison population, which is creating major
law and order and human rights problems.
We have not been informed about the
progress
of
utilizing
the
sentence
remission benefits for limited term
prisoners, whose cases were not covered
by the restriction under section 433 A
Cr.P. C. from the District Judges,
Subordinate Judicial Officers, Jail visitors
lawyers or from the jail authorities and
U.P. SLSA. We would like a better details
in this regard on the next listing.

Report in Connected Criminal
Appeal No. 2773 of 2005 Gobardhan
Singh and another Vs. State of U.P.,
regarding old ailing or long confined
prisoners.

11. Chart 5 has been furnished, which
mentions that between the ages of 70 to 75
years there are 931 such prisoners. Above the
age of 75 years there are 620 prisoners. Most
of these prisoners have been in jail for more
than 10 years, and in most cases their appeals
are pending in the High Court. There are 33
under trial or convicted women prisoners,
who are in jail for more than 10 years. In cases
other than 304 B I.P.C. there are 599 under
trial or convicted male prisoners, who are in
jail for more than 12 years. Even in cases
other than 304 B I.P.C., there are 24 under
trial or convicted women prisoners, who are in
jail for more than 7 years. These figures are
unacceptably high. We are of the view that no
adequate or concrete steps have been taken for
reducing the numbers of such prisoners. It
shows the complete inefficacy of the legal aid
system that the vast majority of these
prisoners who are old or have spent long
periods in jail are not seeking legal aid. In
most of the cases the response recorded to the
query about whether the prisoner desired legal
aid was N.A. or No. We fail to understand
how an old and ailing prisoner who may even
have engaged a lawyer, but whose lawyer is
either not arguing his first bail application or
the prisoner is not able to afford fees for
moving a second bail application being
moved would not be interested in getting bail.
We are indeed disturbed to note that even
though, such a large number of prisoners are
in jail for such long periods of time, as per
information collected from the jail authorities
and papers forwarded to this Court from the
district courts, as pointed out by the High
Court counsel Sri Sudhir Mehrotra, only about
42 prisoners have asked for legal aid. We have
reasons to doubt the correctness of this figure
and it appears that no sincere effort has been
made by the DSLSA's or other judicial
officers or jail visitor lawyers to cross-check
the information furnished by the jail
authorities as directed by the previous order,
or
to
actually
elicit
information
by
interviewing prisoners as to whether they
would like legal aid at the district Court or
High Court levels. This is another illustration
for showing that the legal aid system is
virtually nonfunctional and inspires no
confidence amongst the prisoners or for
general public. Forty two cases relate to jail
appeals pending in the High Court. As a
beginning these limited number of prisoners
identified by the High Court counsel may be
provided with legal aid. There is further need
to contact the old, ailing and long confined
prisoners described above and to make them
an offer of effective legal aid at the district or
High Court levels. The DLSAs after
convincing such prisoners that effective legal
aid would be provided to them, must forward
requests to the High Court. The High Court
also needs to streamline procedures for
providing legal aid for such prisoners.
1 All] Bachchey Lal Vs. State of U.P. and Ors.
327

Directions to CJMs to take steps
for release of prisoners, who are in jail
for period over 2 months after bail
order.

12. We are disturbed to note that in
October, 2013, as per the tabular chart
supplied in October, 2013 pursuant to the
order dated 25.9.2013, there were 155
such prisoners, who are in jail after being
granted bail by the lower Court and High
Court. Now the numbers as per the chart
furnished on 26.3.2014 reveals that there
are 168 such prisoners. Therefore, their
numbers have even increased by 13 from
155 as per the earlier figures. As per the
said chart, it is only in Gorakhpur range,
there has been decline of 33 to 22 such
prisoners. In other ranges of Allahabad,
Meerut, Lucknow, Agra, Bareilly, there
has been no change, or even an increase.
This is in blatant violation of our order
dated 25.9.2013 in Criminal Appeal No.
2773 of 2005 Gobardhan Singh and others
vs. State of U.P. where at page 4, we have
referred to Moti Ram and others Vs. State
of M.P., (1978) 4 SCC 47 and Hussainara
Khatoon (1) vs. State of Bihar, (1980) 1
SCC, 81. In these cases the Apex Court
has reprimanded the subordinate Courts
for considering the obligation to pay a
sum of money on forfeiture of the bonds
or sureties for nonappearance to be the
only means for enforcing the attendance
of the accused to face trial or to receive
sentence, and for fixing bail amounts only
in terms of the nature of the crime, which
approach
favours
the
wealthy
and
discriminates against the impecunious
litigant, and eschews other criteria, such as
roots of an accused in the community, his
financial standing, or other features, such
as the incapacity of an accused to abscond
on account of his young or old age, or
being a woman, or physically infirm or
ailing. Similarly, in our previous order in
Criminal Public Interest Litigation No.
2357 of 1997, Bachchey Lal Vs.State of
U.P., dated 27.11.13 we had called for an
explanation from the District Judges, and
other jail visiting judicial officers as to
why these prisoners (which include
prisoners who are in jail for 9, 10 or 11
years after bail orders as pointed out in
pages 14 and 15 of our order dated
27.11.13) continue to languish in jail for
want of adequate sureties. We had
suggested that such prisoners be released
by the appropriate lower Court Judges by
accepting any other alternative security, or
on personal bonds, with or without
conditions, such as periodical reporting
before police stations or courts concerned,
or alternatively prisoners can be released
from jail on personal bonds and given time
to arrange for sureties, after fulfilling
which requirement the periodical reporting
before the Court or the police station could
be done away with. The bonds could even
be reduced in appropriate cases, and even
the requirement for providing sureties may
be given the go-by in onerous cases, where
the prisoner lacks means to obtain
adequate sureties for his release, forcing
him to illegally and unconstitutionally
remain in jail for long periods of time. We
would like an explanation from the District
Judges
concerned
for
the
inaction
especially regarding the prisoners, which
are mentioned in Proforma 6 of Chart 5
furnished to us on 26.3.2014. Proforma 6
of the said chart may be forwarded to the
District Judges by the Registry and U.P.
State
Legal
Services
Authority
immediately. It is ridiculous to note that
one case, in which the accused is in jail, is
pending since long at the final stage of
hearing arguments, only due to nonavailability of sureties under section 437A.
328 INDIAN LAW REPORTS ALLAHABAD SERIES

Information
sought
about
prisoners confined in jail for more than
5 years desiring legal aid.

13. We think that no genuine effort
has been made by the jail or judicial
authorities in regard to this direction in
our order dated 27.11.2013. We direct the
jail and the DLSAs to sincerely comply
with this direction and to send proper feed
back on the next listing.

Prisoners suffering from mental
ailments

14. Chart II has been furnished
which points out that there are a total of
247 prisoners in jails in the 6 ranges of
Agra, Allahabad, Bareilly, Lucknow,
Meerut and Gorakhpur. However we find
that only a limited number of these
prisoners are being kept in the Mental
hospitals (mainly at Varanasi, and a few
in Agra), and the rest are confined in the
normal jails. There appears to be no
proper protocol for treating or caring for
these prisoners in the jails. We would like
better information on this point from the
ADG (Prisons) and Director General
(Medical and Health) U.P. on the next
listing.

Problems of women prisoners.

15. It has been mentioned in the
affidavit on behalf of the Director General
(Medical and Health) that directions have
been issued for providing private health
care for women prisoners in Kanpur and
Allahabad jails, and that an order has been
issued on 21.2.14 by the Director General
(Medical and Health) to the CMOs to
assign duties of specialist government
women doctors for female inmates and for
their minor children in jails. On the next
listing we would like a feedback from the
Jail Superintendents and District Judges
regarding the extent to which this
direction is being carried out, and doctors
have been provided who are visiting jails
and addressing problems of women
prisoners and their minor children.

16. Better details be also furnished
regarding the other remaining points in the
order dated 27.11.2013 in Criminal Public
Interest Litigation No. 2357 of 1997 (Bacchey
Lal v. State) and the order dated 25.9.2013 in
Criminal
Appeal
No.
2773
of
2005
(Govardhan v. State) on the next listing.

17. As we are passing orders on
several prison reform related matters in
these connected petitions and appeal, and
often different sets of responses are
forwarded to the UPSLSA and to this
Court from the lower Courts and
administrative authorities, we direct the
Registrar
General
to
appoint
an
appropriate Judicial Officer to vet files
and to present responses systematically
and to be available during the periodical
hearings in these connected matters.

18. The Registrar General, High Court
and the Member Secretary, U.P. Legal
Services
Authority
are
directed
to
communicate and ensure compliance of the
aforesaid directions and to submit a report on
the next listing. We also direct the Member
Secretary and Secretary, UPSLSA, not
merely to forward the responses received by
the Authority to this Court, but to proactively issue directions to the DLSAs and to
take other necessary steps as these matters
relate to prisoners confined in jails and their
need for legal aid.

19. Copies of this order be provided to
Member Secretary, UPSLSA, all District
1 All] Bhagwan Singh Vs. Sri Nahar Singh & Ors.
329
Judges for communicating to members of
DLSAs, CJMs and other concerned judicial
officers, District legal aid counsel, ADG
(Prisons), U.P. for communication to all Jail
superintendents, Law Secretary and LR,
Home Secretary, U.P., Director General
(Medical
and
Health),
U.P.,
learned
Government Advocate, learned AGA Sri
Vimlendu Tripathi, Special counsel for High
Court, Sri Sudhir Mehrotra, learned Amicus
Curiae, Sri Patanjali Mishra, and also to place
the same before the R.G. High Court for
compliance and submission of feedback on
next listing. We hope that the said authorities
or at least the high level representatives on
their behalf who are capable of taking
decisions in 13 the matters and answering the
queries that may be raised by the Court, shall
attend the hearing on the next listing.

20. List on 21.4.2014
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2014

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 2870 of 2014

Bhagwan Singh.... Defendant/Petitioner
Versus
Sri Nahar Singh & Ors.
..... Plaintiffs/Respondents

Counsel for the Petitioner:
Sri S.C. Pandey

Counsel for the Respondents:
Sri M.K. Srivastava
C.P.C.- Order VII Rule-11- Application to
reject
plaint-on
ground
of
limitationrejected by Trail Court-as after exchange of
pleading-after framing issues-this question
can be decided more appropriately-no
interference called for-petition dismissed.
Held: Para-10 & 11
10. The non rejection of the plaint under
Order 7 Rule 11 CPC would only entail
participation and contest of the suit by the
defendant who thereupon can always raise
an issue of the suit being barred by
limitation. On such a plea being raised an
issue regarding suit being barred by time
can be framed by the court and decided
more appropriately on the basis of the
evidence
adduced
by
the
parties
irrespective of rejection of the plaint under
Order 7 Rule 11 CPC.

11. Thus, the order impugned does not in
any manner results in miscarriage of justice
causing irreparable loss and injury to the
petitioner which may warrant interference
by this Court in exercise of extra-ordinary
writ jurisdiction.

Case Law discussed:
(2006) 5 SCC 658; (2005) 7 SCC 510; (2005) 5
SCC 548.

(Delivered by Hon'ble Pankaj Mithal, J.)

1. The plaintiff respondents no. 1
and 2 on 29.5.2008 have filed a suit for
specific performance of an agreement to
sell dated 15.6.1983.

2. Petitioner filed an application under
Order 7 Rule 11 CPC alleging that the suit is
patently barred by law of limitation.. The
application has been rejected by the courts
below.

3. The submission of the learned
counsel for the petitioner is that the question
of limitation is dependent upon the legal
proposition and no factual aspects are
involved therein and therefore the courts
below are not justified in rejecting the
application.

4. Learned counsel for respondents
no. 1 and 2 relies upon a decision of the
Supreme Court in (2006) 5 SCC 658